Adults with Incapacity Amendment Act: consultation analysis summary

4. Analysis of Responses

Part 1: Principles of the Legislation

Question 1: Do you agree that the principles of the AWI Act should be updated to require all practicable steps to be taken to ascertain the will and preferences of the adult before any action is taken under the AWI Act?

Total Responses	Yes	No	Comments only
126 (77.8%)	107	9	10

The significant majority of respondents were in favour of this. Concerns were expressed around practical details, and how this change might be resourced but the approach was welcomed.

Question 2: Do you agree that in the AWI Act we should talk about finding out what the adult’s will and preferences are instead of their wishes and feelings?

Total Responses	Yes	No	Comments only
110 (67.9%)	90	20	-

Whilst there were concerns that the change in language might be confusing, the majority of respondents were in favour of the change, as the language reflects that used in human rights legislation but it was essential that language used could be understood by all those using the legislation.

Question 3: Do you agree that any intervention under the AWI Act should be in accordance with the adult’s rights will and preferences unless not to do so would be impossible in reality?

Total Responses	Yes	No	Comments only
120 (67.9%)	80	30	10

The main issue with this question was the high standard set by the term ‘impossible in reality’. Many of those who disagreed with the proposal cited this as the main reason. But even amongst those who agreed, many raised concerns that the bar was set too high, and significant resource would be needed to meet the demands set by this proposal. A number of respondents pointed to the UNCRPD committee’s comments on the ability for others to make a non-discriminatory best interpretation of the person’s will and preferences which is of assistance in circumstances where a person even with support is unable to express views themselves.

Question 4: Do you agree that the principles should be amended to provide that all support to enable a person to make their own decisions should be given and shown to be unsuccessful before interventions can be made under the AWI Act?

Total Responses	Yes	No	Comments only
107 (66%)	93	14	-

Again many responses were concerned with the high bar set by the term ‘all support’ and both those in favour and the few against commented on the need for significant investment in supported decision-making, both in training and resource, that would be needed to underpin this proposal. There were concerns about who might decide an intervention was unsuccessful. Almost every response to this question highlighted the need for additional provision for independent advocacy.

However, the overall view was in favour of a greater emphasis on supported decision-making, in keeping with the requirements of the UNCRPD.

Question 5: Do you agree these principles should have precedence over the rest of the principles in the AWI Act?

Total Responses	Yes	No	Comments only
107 (66%)	58	49	-

The responses to this question were much more finely balanced between those in favour and against than earlier questions. Many were of the view that the current principles work well together and all the principles should remain of equal importance.

Responses from a number of social work practitioners raised concerns that the will and preference of some individuals can be in direct conflict with the actions required to keep them safe and protect them from harm. Medical practitioners also highlighted the need to balance an adult’s wishes and timescales that may need to be met in cases of medical emergency. A number pointed out that as principles are not always followed at present this change would make little difference.

Again resource was cited as an issue, but many commented that ensuring adults are involved in decisions about their own lives respects their fundamental right to self- determination and recognises their ability to contribute meaningfully to their care and life choices and therefore this principle should have priority.

Question 6: Do you have any suggestions for additional steps that could be put in place to ensure the principles of the AWI Act are followed in relation to any intervention under the Act?

Total Responses	Yes	No	Comments only
100 (61.7%)	69	31	-

The most popular suggestions were training for all practitioners, including health care staff, additional provision of independent advocacy services, including changing provision to an ‘opt out’ service, ensuring the principles are the focus of meetings such as AWI case conferences and raising awareness with attorneys and guardians.

Question 7: Do you agree with the change of name for attorneys with financial authority only?

Total Responses	Yes	No	Comments only
108 (66.7%)	100	8	-

The vast majority of respondents supported this change, with the view expressed that this would provide some much needed clarity.

Question 8: Do you agree with our proposals to extend the power of direction of the sheriff?

Total Responses	Yes	No	Comments only
95 (58.6%)	92	3	-

As with question 7 the vast majority of respondents were in favour of this change, saying that it would provide much needed legal support and clarity.

Question 9: Do you agree with our proposal to amend the powers of investigation of the OPG to enable, where appropriate, an investigation to be continued after the death of the adult?

Total Responses	Yes	No	Comments only
97 (59.9%)	96	1	-

The almost unanimous approval of this proposal speaks for itself, with the view being that this is a sensible move and will help inform cases in the future.

Question 10: Do you agree that the investigatory responsibility between Office of the Public Guardian (OPG) and local authority should be split in the manner outlined above?

Total Responses	Yes	No	Comments only
95 (58.6%)	49	37	9

A small majority of respondents were in favour of splitting OPG and local authority duties in the manner described.

Of those that agreed, generally little detail was given in their responses. Where more detail was given, it was to raise concerns and caveats around their agreement. Some respondents agreed as they thought that clearer lines of responsibility would provide clarity about who investigates and reduce duplication of effort and resources. Others agreed but raised concern about the resources required and the expertise of social work departments to carry out financial investigations. If they were to take on a new responsibility, they commented that it was vital that there is appropriate resourcing and training to ensure the task is done properly.

A couple of respondents agreed on the basis that financial concerns and welfare issues cannot easily be separated, and it would be reasonable for them all to be linked to the adult support and protection responsibilities of the local authority. 

Much more detail was given by those who disagreed with the proposal. The majority of those who left a comment considered that the OPG should consider financial matters in relation to continuing financial attorneys. Respondents set out that local authority staff generally lack the skill set required and with the pressure on local authorities it makes more sense to concentrate expertise in the OPG, who have the existing expertise. Further respondents thought additional powers the OPG have in relation to investigations (freezing of bank accounts etc.) would not be available to local authorities. And additional respondents commented that OPG may have a role in supervising power of attorneys (if directed to by the Court), and felt the investigatory responsibility should not be removed from them, especially as this is proposed to be strengthened.

A large proportion of respondents commented that they did not agree with the proposals as they had the potential to add complexity and confusion and risk creating a system where responsibility for investigation and action sits with different bodies.

A number of respondents thought that consideration should be given as to whether legislative reform is required to create a clear investigation pathway or whether this could adequately be resolved through guidance, changes to practice and stronger partnership working.

Question 11: Will these changes provide greater clarity on the investigatory functions of OPG and local authority?

Total Responses	Yes	No	Comments only
90 (55.6%)	42	35	13

This question was a continuation from the previous one, so in responding to this, both agreeing and disagreeing, many respondents merely referred to their previous response.

Those respondents who disagreed tended to reaffirm their previous response. Some respondents commented that the proposal potentially creates confusion as to the investigatory roles. Others thought clarity would be better provided if all financial/property investigations were carried out by OPG and welfare investigations were the responsibility of the local authority or Mental Welfare Commission (MWC). Respondents set out that instead of promoting more siloed working, more emphasis on better partnership working and effective information sharing between local authorities and the OPG would be better. They continued to comment that this work had already commenced (assisted by the National Adult Support and Protection Coordinator and the Public Guardian) and was producing helpful results.

Question 12: Will this new structure improve the reporting of concerns?

Total Responses	Yes	No	Comments only
89 (55%)	36	36	17

There was an even split of respondents agreeing and disagreeing with the proposal in this section.

A number of respondents could not come to a conclusion but commented that the effectiveness of any structure, and with it any improvement in the reporting of concerns, depends upon it being properly resourced. Other respondents were of the view that guidance to support the legislative framework would be needed to promote practical understanding of processes around the investigation and reporting of concerns.

Those that agreed and disagreed tended to give brief responses agreeing or disagreeing with the proposal, having given more detail in their answers to the previous two questions. Some respondents who disagreed commented that clear guidance, collaborative working and communication strategies would lead to improvement. Others felt that improvements in joint working and communication between the OPG and local authorities would be sufficient to ensure safeguarding of all areas of an adult’s life.

Of those that agreed and left a comment, some felt that the proposal should simplify the routes to report concerns and reduce confusion about who should receive reports of concern. However, they had doubts in relation to the local authorities' capacity to take on this additional responsibility. Others thought that people might feel more comfortable contacting their local authority and use them as the default.

Part two: Training for Attorneys

Question 13: Do you agree with the proposals for training for attorneys?

Total Responses	Yes	No	Comments only
109 (67.3%)	88	14	7

Most of the respondents agreed with the proposals for mandatory training for attorneys. Of those who disagreed, the commonly held view was that whilst it was felt that meaningful training would be beneficial to individuals there should be an element of choice in this. There was also a concern that mandatory training may discourage uptake of power of attorney and delay the registration process.

Of those who agreed, a number of common themes emerged from the responses. A commonly held view was that having access to training would give parties a better understanding of the role and responsibilities that come along with being appointed a power of attorney. Another consistent view amongst respondents was how important it was to ensure that training is accessible to all, especially to those who do not have access or are unable to use digital services. Another comment added that many people who hold powers of attorney are elderly and any training needs to reflect the needs of this population and ensure the training is supportive and user friendly and jargon free.

Some of the additional comments were that clarification needed to be provided on when training was required. Would this be on appointment or when the attorney begins to exercise their powers which could take years. There was also suggestion that the training should be framed in a human rights-based approach. The training should emphasise the importance of UNCRPD and link supported decision-making.

Enhancing the safeguards around power of attorney

Question 14: Do you agree that the Office of the Public Guardian (OPG) should be given power to call for capacity evidence and defer registration of a power of attorney where there is a dispute about the possible competency of a power of attorney document?

Total Responses	Yes	No	Comments only
105 (64.8%)	92	5	8

Most of the respondents agreed that the OPG should be given additional power to call for capacity evidence in the above circumstances. Of the respondents that disagreed, only two provided reasons. One respondent felt this would be a matter for the Law Society not the OPG and another respondent felt that given the current capacity constraints of the OPG this would lead to delays in the process.

Of those who agreed, the overwhelming majority of respondents felt that this would enhance the integrity of the process and safeguard the rights of the individual.

Another consistent view amongst respondents was that it is critical that the rights of the individual are upheld in these circumstances and deferring registration ensures that the power of attorney is not conferred inappropriately.

One respondent felt that in such contentious situations, the OPG is best positioned to take the lead, ensuring that all concerns about the individual’s capacity are addressed before the registration process proceeds.

Other respondents felt that there needed to be clear guidance on the grounds of refusal that are applied and limitations on the circumstances in which an investigation can be undertaken so there are clear boundaries. This will allow other agencies to know when to raise concerns with the OPG if they are aware of a potential issue with the power of attorney seeking to be registered.

Another view was that practitioners have examples of situations when an adult’s capacity has been queried at the time of setting up a power of attorney. However, the OPG has not been able to investigate this. Giving powers to the OPG to investigate would provide more protection for vulnerable adults.

Question 15: Do you agree that the Office of the Public Guardian should be able to request further information on capacity evidence to satisfy themselves that the revocation process has been properly met?

Total Responses	Yes	No	Comments only
100 (62%)	91	4	5

The majority of those who agreed with the approach felt that if OPG were given the power to request further information on capacity evidence that this would add an additional safeguard into the process and enhance protection for vulnerable adults. A number of respondents also agreed that OPG should be able to request such information. They felt that reference to the Sheriff Court should remain where doubt about capacity exists.

Of the respondents that opposed the proposal only one respondent provided a response and they expressed concern that the OPG would be making quasi-judicial decisions and they felt that with current financial constraints they do not have sufficient capacity to undertake such work.

A number of respondents in favour of the proposal expressed some concern that there will be a requirement for additional money and staffing to ensure that these additional powers can be fulfilled as swiftly as possible. Some respondents also felt that greater clarity was required around the intention to request information on capacity and there should be guidance on what types of information would be expected.

The overwhelming response was supportive of the proposal and the consensus view was that it would provide an additional layer of assurance to the process and help safeguard individual rights.

Question 16: Do you agree that the Office of the Public Guardian should be given the power to determine whether they need to supervise an attorney, give directions or suspend an attorney on cause shown after an investigation rather than needing a court order?

Total Responses	Yes	No	Comments only
101 (62.4%)	86	7	8

The consensus view amongst respondents was that extending the OPG powers in this way seemed a sensible approach, particularly given that it is balanced against the right of attorney’s to appeal to the Sheriff Court. Several respondents felt that this was a practical and necessary enhancement. This would provide OPG with greater independence and flexibility to act swiftly and appropriately in safeguarding the interests of the adult, avoiding unnecessary delays caused by court procedures.

Another respondent felt that this should improve protective arrangements for vulnerable adults and prevent harm from arising. There was some concern expressed that if the OPG are given such powers then they must have sufficient resources and capacity to take such action. Another view was that OPG is the body with the correct knowledge and expertise to carry out the investigation into potential misuse or abuse of powers rather than the local authority.

Of the seven respondents that disagreed one felt that it should be a decision for the court and that this was specialist area and another respondent felt OPG staff may lack experience or training to perform role.

Increasing accessibility of powers of attorney

Question 17: Should we extend the class of person that can certify a granter’s capacity in a power of attorney?

Total Responses	Yes	No	Comments only
105 (64.8%)	86	10	9

Most of the respondents agreed that the class of person that can certify a granter’s capacity in a power of attorney should be extended. Of those respondents that disagreed, one respondent felt that only those who fully understood the legislation should be able to undertake this task and that there needed to be appropriate safeguards in place. Another commented that the proposal would not increase the uptake of power of attorney. One respondent supported extending the class of persons to psychologist but not paralegal because they don’t have the reputation and skill of a solicitor.

A majority of respondents agreed that the proposal would enhance the overall process and widen the accessibility of powers of attorney. Several respondents highlighted the importance of ensuring that the individuals have relevant training and qualifications to certify a grant’s capacity in a power of attorney and continued registration with their governing body. One respondent commented that by broadening the scope to include qualified professionals would ensure efficiency without compromising the integrity of the certification process. A number of respondents felt that GP’s are overloaded with work and are not always best to decide capacity. Other comments included that this would promote consumer choice and the current restrictions on who can undertake this process is limiting the increase of use of power of attorney.

Question 18: Do you agree that paralegal should be able to certify a granter’s capacity in a power of attorney?

Total Responses	Yes	No	Comments only
100 (61.7%)	51	40	9

Of the responses that agreed, a common view was that paralegals should be able to perform this role with the appropriate training and supervision by a lawyer. Several respondents felt that paralegals already carry out many of the same functions as solicitors. One respondent felt that the proposal would ensure cases are handled appropriately from the outset, reducing investigation burdens.

Of the responses that disagreed, the most common reason to reject the proposal were concerns around lack of training, knowledge and accreditation of paralegals to perform this role. One respondent felt that trainee solicitors are currently unable to certify capacity and there would be concern if paralegals were given the role as there would be a lack of supervision in practical terms by solicitors. Another view was this proposal would not increase access to justice nor increase consumer choice as there were only 35 accredited paralegals in Wills and Executries according to the Law Society of Scotland website. Another view for rejecting the proposal was that it should only be reviewed by people with a full understanding of the nuances of capacity and decision-making.

Question 19: Do you agree that a clinical psychologist should be able to certify a granter’s capacity in a power of attorney?

Total Responses	Yes	No	Comments only
104 (64.2)	94	4	6

The majority of the respondents agreed that clinical psychologists should be able to certify a granter’s capacity in a power of attorney. Of those who did not agree only one gave a reason and they felt that capacity is complex and should only be reviewed by people with a full understanding of the legislation.

The majority of respondents that agreed expressed the view that psychologists are registered professionals who have the necessary knowledge, skills and expertise to undertake this role. Several respondents commented that clinical psychologists provide comprehensive reports on a person’s capacity already and are potentially more qualified to do this than paralegal.

One respondent felt that there should be conditions imposed that the individual is currently a registered clinical psychologist. Another view was that whilst this extends to the reach of professionals able to certify a granter’s capacity, we needed to be mindful of the already stretched resources and likely demand on the profession.

Other comments included that the quality of psychology assessments is often very high and clinical psychologists are trained in assessing cognitive capacity, making them ideal for certifying a granters capacity in a power of attorney.

Question 20: Which other professionals can certify a granter’s capacity in a power of attorney?

83 (51.2%) responses to this question

Respondents suggested a range of different professionals highlighted in the table below.

Professional	Number of Respondents
Mental Health Officer	16
Social Worker	14
Community Psychiatric Nurse	14
Allied Health Professional	7
Nurses	6
Advanced Nurse Practitioner	6
Occupational Therapist	4
Speech and Language Therapist	3
Occupational Health Therapist	2
Psychiatrist	2
Neuropsychologist	1
Accountant	1
Teacher	1
Police Officer	1
Local Minister	1
Local Councillor	1
Care Manager	1
Academic	1
Mediator	1

Respondents suggested a range of different professions as can be seen on the table above. The majority felt that MHOs should be able to certify a granter’s capacity. The common view amongst those respondents was that MHOs have the knowledge and competence in the area of mental health and capacity to undertake this role. Social Worker and Community Psychiatric nurses were a popular second choice and Allied Health Professionals in third place.

Several respondents felt that social workers would be ideally placed with their training but acknowledged that the pressures on social workers across the country are significant. One respondent felt that Community Psychiatric nurses have the adequate knowledge of the patients overall circumstances and are experienced to rule out any other underlying psychiatric conditions that would interfere with the patients capacity. Some respondents who had chosen Allied Health professionals felt that they would need formal robust training before undertaking the role.

Question 21: Do you agree that attorneys, interveners and withdrawers (under Part 3) should have to comply with an order or demand made by the Office of the Public Guardian in relation to property and financial affairs in the same way as guardians?

Total Responses	Yes	No	Comments only
94 (58%)	88	1	5

The majority view was that the proposals would strengthen the safeguards for adults and would provide consistency with other areas of the act. Another consistent view was this would improve the oversight of power of attorney and prevent misuse of property and funds and increase accountability.

A couple of respondents felt that attorneys, interveners and withdrawers should have to comply with an order or demand made by OPG in relation to property and financial affairs in the same way as guardians and provide parity of protection.

Several respondents commented that the current arrangements whereby the Public Guardian is able to exert power over Guardians but not attorney’s seem anomalous with the proposed change and the proposal would address that anomaly. Several respondents although in agreement with the proposal wanted clarity on how this would be implemented and monitored. One respondent felt that this should help mitigate against financial abuse.

Broadening powers of Public Guardian to order compliance with demands in relation to property and financial affairs of the adult

Question 22: Do you agree that the Public Guardian should have broader powers to suspend powers granted to a proxy under the Adults with Incapacity Act whilst they undertake an investigation into property and financial affairs?

Total Responses	Yes	No	Comments only
88 (54.3%)	80	3	5

An overwhelming majority of respondents agreed with the proposal. A consistent view amongst respondents was that this would close the gap in the law and allow consistent powers to be applied by the OPG across all forms of the AWI Act management of property and financial affairs ensuring that all proxies are equally accountable and subject to scrutiny. Another common view amongst respondents was that the ability to suspend powers granted to a proxy during an investigation would protect incapable adults from financial abuse.

Other views were empowering the OPG to supervise, suspend or give directions to an attorney, with a right of appeal to a sheriff is a sensible and proportionate measure. The current arrangements whereby the Public Guardian is able to exert this power over guardians but not attorneys seems anomalous. The proposed change, therefore, would address the anomaly and introduce more timely safeguards for individuals.

One respondent felt that it would be worth investigating how OPG currently uses s64(7) power before extending this requirement to attorneys, who unlike guardian, interveners and withdrawers are appointed by the adult rather than the court and OPG. Another respondent commented that they felt unsure about the proposal.

Question 23: Do you agree that the Mental Welfare Commission and local authority should have broader powers to suspend powers granted to a proxy under the Adults with incapacity Act whilst they undertake an investigation into welfare affairs?

Total Responses	Yes	No	Comments only
92 (56.8%)	71	12	9

The majority of the respondents that agreed with the proposal felt that a suspension of powers pending the conclusion of an investigation would provide greater safeguards. A number of respondents felt that MWC and the local authority are often in the best place to see any potential abuse and should be afforded this power but in liaison with OPG. Several respondents felt that it was crucial to impose a time limit on both the suspension and investigation as prolonged delays could negatively affect the care provider, particularly in terms of care costs not being received.

Of the respondents that did not agree with the proposal, a number of those felt that it wasn’t appropriate for the local authority to be involved in investigating welfare affairs as this could create a conflict of interest because local authorities can also have responsibility for welfare guardianships. Two respondents felt that the powers should lie with the MWC and OPG only. One respondent felt that these matters should be reserved for the OPG and First Tier tribunal.

Part 3: Access to Funds

Question 24: Do you agree that the powers and specific amounts should be decoupled?

Total Responses	Yes	No	Comments only
64 (39.5%)	63	1	-

Almost all respondents agreed with the proposal. Of the quarter of respondents that left a comment, most thought it would offer increased flexibility. A few added that it would be quicker and less complex to pay fees. A couple stated that the Access to Funds (ATF) scheme at present was onerous to use and others were in favour along as there was accountability.

One respondent thought that there was a conflict of interest if care homes were allowed to apply for this and were then allowed to vary and pay their own fees. They thought these circumstances should be subjected to specific monitoring arrangements. Additionally they thought limits should be set on spending in any given year, to be reviewed by OPG.

One comment thought that if ATF was too like guardianship then they would recommend a guardianship application instead.

A couple of respondents required more information. They commented the estimated amount would be better on certificate. It removes the requirement of information being held by OPG and allows financial institutions to monitor the account better. If there was a type of access to funds management plan, this would increase paperwork. They noted concerns about protection of the adult’s estate and referred to caution in guardianships. They also noted concerns about the proposals being a light form of guardianship, without judicial scrutiny.

Question 25: Do you agree that the withdrawal certificate should contain standard, proforma powers for the withdrawer to use?

Total Responses	Yes	No	Comments only
67 (39.7%)	59	8	-

The vast majority of respondents agreed. Of the small number that disagreed, a few comments referred to powers being granted on a case by case basis and tailored to the adult. Some respondents thought a list of standard, proforma powers was likely to be viewed as exclusionary, officially sanctioned and could possibly be viewed as the provision of legal advice.

Some respondents who agreed with adding powers, however, also thought that they should be adjusted and tailored to each individual. One suggested that proposed powers given to ‘authorised establishments’ under ATF arrangements (currently under Part 4 of the existing AWI Act) should be more restrictive around payment of care home and care service fees.

Some respondents agreed and thought that it offers increased flexibility whilst maintaining safeguards. Others thought it offered increased safeguards and flexibility and one advised it would help with issues with banks understanding.

Question 26: Do you agree that access should be given to the adult’s current account, rather than setting up a ‘designated account’?

Total Responses	Yes	No	Comments only
74 (45.7%)	51	12	11

Again a majority of respondents thought that access should be given to the adult’s current account.

All of those who disagreed left a comment. All thought there was a risk of further abuse of the adult’s finances if access was given direct to the current account. Some respondents thought that the issue of willingness of Banks to comply and clear guidance for Banks was essential. One thought there should be a requirement for bank staff to undergo training on the difference between current and designated accounts. One respondent preferred that safeguards were built in upfront, rather than relying on issues being picked up by annual supervision. One respondent commented that a designated account was easier to audit and review.

Of those who agreed, a common view could be summarised as the proposals being positive by providing less restrictions, removing layers of complexity and providing a practical solution.

A number of respondents agreed, with the caveat that there should be adequate supervision from OPG and Banks. A couple added that an indication of estimated accounts on certificate would assist. They further added that the Scottish Law Commission proposed the ATF scheme in its report on incapable adults (SLC 151, Part 4), the Commission envisaged direct access to the bank account of the adult.

A few respondents agreed and pointed out that security for the adults estate via a bond of caution would be required. One respondent thought there should be a limit on the size of the current account, with concerns the account could be cleared out near the end of the adult’s life.

Question 27: Do you agree that in certain circumstances, applications where there is a guardian, or intervener with powers relating to the funds in question should be allowed?

Total Responses	Yes	No	Comments only
66 (40.7%)	56	5	5

The vast majority of respondents supported the proposal.

Of those that disagreed, one respondent thought it would be extremely difficult to manage if two different parties were managing the same account.

Of those that agreed most who left a comment supported the proposal on the basis that it made the flow of funds simpler and more seamless, whilst still maintaining accountability.

Some respondents were concerned that the proposals should only be used where this would be prudent and efficient, and of benefit to the adult. There would need to be clear reasons for doing so, such as in the examples set out in the consultation paper. Lines of demarcation should be identified to eliminate risks of confusion around roles and responsibilities.

One respondent advised that is a major defect of Part 3 that equivalent transfer from an intervention order (to that provided for guardianship in terms of section 31E) is not permitted. This can result in an unnecessary guardianship, rather than the lesser intervention of an intervention order, where the expectation is that funds released can ultimately be administered under Part 3. A process should be provided for intervention orders which will allow for a seamless continuation of authority to manage the adult’s funds, in terms of ATF.

Question 28: Do you agree that we should clarify that a bar to applying under this section only applies if someone is already authorised under Part 3 of the Act to intromit with the same funds?

Total Responses	Yes	No	Comments only
64 (39.5%)	58	3	3

The vast majority of those who responded to this section were in support of the proposal. The main reason was that it provided clarity that a bar to applying under Part 3 only applies if someone already is authorised only under Part 3 of the AWI Act to intromit with the same funds.

Some respondents commented on the confusing nature of the language used in Part 3. They commented that language and terminology used in Part 3 was complicated and is not user-friendly. Steps must be taken to clarify the language and to improve the wording to avoid confusion. The term ‘intromit’ is not commonly used among the public and the wording should be accessible to all.

One respondent thought that the clarification was essential in preventing financial abuse and simplifying investigations.

Question 29: Does having an account in the adult’s sole name limit organisational use of the scheme?

Total Responses	Yes	No	Comments only
66 (40.7%)	49	12	5

A large majority of respondents agreed that having an account in the adult’s sole name limited organisational use of the scheme and they would prefer a corporate account to be used.

Of those who disagreed with the proposal and left a comment, all were centred around protection of the adult’s funds. Some thought the funds should be clearly delineated to protect the adults’ interests. Others felt it was necessary even though it would create delay. One thought that it would be too easy to access the adults’ funds with less regulation and others stated that it would not limit organisational use of the scheme.

A common thread of those who agreed and left a comment was that it would attract more organisations as it was easier and more efficient to manage the adult’s finances. However, this was caveated by adding that the adults’ funds must be clearly accounted for. A few respondents pointed out that there would be more people available to manage the adult’s account, making this easier to manage for the adult. Other respondents pointed out the problems when no carers or relatives were involved and that the proposal would make accessing funds for the adult in these circumstances easier.

Question 30: Should we add the same transition provisions to intervention orders as there are for guardianships?

Total Responses	Yes	No	Comments only
67 (41.4%)	61	3	3

The vast majority of respondents agreed with the proposal. Of those that left a comment a common view was that it was the least restrictive method of managing the adult’s finances, saying it was easier and simpler and commenting that it provided parity of approach between intervention orders and guardianship orders.

Other comments referred to the increased flexibility it provided and that it negated the need for a financial guardianship.

Question 31: Do you agree that sheriffs, under certain circumstances, should be able to grant powers to access funds under our new proposal?

Total Responses	Yes	No	Comments only
68 (42%)	67	1	-

Respondents were overwhelmingly in favour of this proposal. The two main comments received revolved around it being the least restrictive method of managing the adult’s finances and the process being streamlined, avoiding a new ATF application from the beginning. Others thought that it offered the sheriff more flexibility in these circumstances.

Question 32: Do you agree that authorised establishments should be able to apply under the ATF scheme?

Total Responses	Yes	No	Comments only
66 (40.7%)	54	9	3

A clear majority of respondents agreed with the proposal that authorised establishments should be able to apply under the access to funds scheme. However, there was clear concern about potential conflict of interest of authorised establishments paying their own fees from the adult’s account and able to raise them themselves. A couple of respondents did not answer yes or no but required details of further safeguards to mitigate the above concerns. Of those who disagreed, some had conflict of interest concerns, with OPG supervision only at the end of the year.

Of those that agreed with the proposal, a number of respondents raised a conflict of interest concern and thought there should be clear guidance about restrictions and implementation, or that care home fees paid through authorised establishment ATF arrangements should be subject to specific monitoring arrangements.

Some respondents thought that authorised establishment could assist with adult’s finances where there is no-one else to do so and a further three commented that care homes were in a much better position than local authorities to understand the adults needs. Other respondents stated it was the least restrictive method of accessing the adult’s finances.

Question 33: Do you agree we should split intimation of the application between organisations and lay people (OPG)?

Total Responses	Yes	No	Comments only
66 (40.7%)	44	17	5

A clear majority of respondents were in favour of the proposal to split intimation of the application between organisations and lay people.

One respondent answered neither yes or no and required further clarity on the detail and whether a standard process would be shared with local authorities. Of those who disagreed with the proposal most respondents thought it would add to the workload of the local authorities at a time when recruitment/retention are ongoing issues (especially in rural localities), coupled with continuing cuts to budgets and requests for savings. A few respondents commented that intimation should be the responsibility of the OPG in all cases to ensure a consistent approach within a currently operating and effective framework. Placing the responsibility on organisations may result in variance of practice. A couple of respondents felt there was no problem with the existing system and one commented that it would deter applications from organisations.

Some respondents who agreed with the proposal thought that it would promote standardisation across practice with intervention orders, guardianships in sheriff courts and access to funds. Some respondents agreed with the proposal but were concerned about the capacity of organisations to undertake this responsibility. Other respondents stated it would allow OPG to allocate its resources more efficiently.

Part 4: Management of resident’s finances

Question 34: Do you support the proposal to remove Part 4 of the AWI Act?

Total Responses	Yes	No	Comments only
69 (42.6%)	53	8	7

There is broad support for the removal of part 4 due to its low utilisation, complexity and the availability of alternative mechanisms. Multiple responses express that the procedural hurdles involved make other parts of the Act or alternative mechanisms preferable. Several comments suggest that these alternatives are not only simpler but more effective in protecting and managing the finances of adults with incapacity.

A common theme is that more straightforward alternatives, such as the ATF scheme, guardianships and intervention orders already cover the financial management needs that Part 4 intends to address.

However, respondents emphasise the importance of ensuring robust safeguards, oversight and clarity in any replacement framework to protect individual’s financial well-being and minimise potential risks of financial abuse.

Question 35: Do you think alternative mechanisms like the Access to Funds scheme, guardianships and intervention orders adequately address the financial needs of adults with incapacity living in residential care settings and hospitals?

Total Responses	Yes	No	Comments only
71 (43.8%)	49	12	10

While there is support for the ATF scheme, guardianships and intervention orders as alternatives to Part 4, respondents stress the need for a more streamlined, accessible and well-resourced system. Several respondents suggested that national funding and resources are necessary to support care homes in managing finances via corporate appointee-ships and ATF schemes.

A call for standardised processes and oversight at a national level was emphasised, with some respondents recommending that a central agency oversee financial arrangements to ensure consistency and safeguard against misuse.

Many respondents support the idea of enhancing the ATF scheme to make it more accessible and effective for residential care settings. Suggestions include clarifying how ATF could apply in specific situations (such as managing movable property or handling residents’ personal accounts) and expanding its scope to better accommodate the diverse financial needs of adults with incapacity.

Part 5: Authority to medically treat adults with incapacity

Question 36: Do you agree that the existing section 47 certificate should be adapted to allow for the removal of an adult to hospital for the treatment of a physical illness or diagnostic test where they appear to be unable to consent to admission?

Total Responses	Yes	No	Comments only
101 (62.35%)	68	21	12

The majority of respondents that agreed with the proposal felt that this would be a very welcome improvement and would provide clear legal authority for healthcare professionals to act in non-urgent situations. Some of those respondents who agreed felt that those who would be required to authorise this process should have appropriate training and skills to confidently assess capacity. One respondent felt that this would enhance protections for vulnerable adults while ensuring timely access to essential healthcare and also closes a gap in the current law where the principle of necessity under common law may not adequately cover non-emergency situations. Other views were that this change was supported only if there clear guidelines and frameworks in place and appropriate checks and balances.

The majority of those who disagreed felt that more clarity was required around issues such as who would be responsible for conveying the adult to hospital, what would happen if the person refused to be conveyed to hospital and who would provide restraint. There were concerns that training and support for health and social care staff needed to be mandatory to allow this to work. There was also concern expressed that any changes to Section 47 would need to be carefully framed to ensure compliance with human rights law, ensuring that any actions are proportional, justified, and subject to oversight.

Question 37: Do you consider anyone other than GP’s, community nurses and paramedics being able to authorise a person to be conveyed to hospital? If so, who?

Total Responses	Yes	No	Comments only
98 (60.5%)	42	48	8

The majority of those who disagreed felt that only someone with sufficient training, knowledge and experience should have this authority. A number of respondents felt that these healthcare professionals listed in the question seem most appropriate as they are the three professional roles that are most likely to need to make the decision to convey a person to hospital. Other comments expressed concern that there needs to be a clear legal framework that sets out who has the power to convey and there needed to be limits on who can do this to protect individuals.

Of those respondents that felt other professionals should be able to authorise conveying a person to hospital, some felt that the definition of ‘community nurse’ needed to be defined as it has two meanings and can be unnecessarily limiting and could lead to confusion and create two classes of registered nurses with different powers under the law. Some respondents suggested that MHOs and possibly psychologists could be trained to undertake this role. Others suggested that social workers, police and language and speech therapists could be considered. Several respondents felt that the ability to convey someone to hospital should be extended to dentists and psychiatrists whoever is the professional in contact with the person at the time of their health need arising. One respondent felt that the legislation needed to be future proofed to include pharmacists practising in community. The commonly held view throughout was that the professionals must have the right level of knowledge and training to make the right decision and this should be regularly monitored and evaluated.

Question 38: Do you agree that if the adult contests their stay after arriving in hospital that they should be assisted to appeal this?

Total Responses	Yes	No	Comments only
101 (62.4%)	92	3	6

Of the respondents that did not agree only one provided a comment on whether an adult should be assisted with their appeal if they contested their stay in hospital. They felt that if they lack capacity then this is a waste of time.

The overwhelming majority of respondents agreed that if the adult contests their stay in hospital, then they should be assisted to appeal this. Most of those who agreed felt that this was a necessity to ensure compliance with human rights obligations. A number of respondents felt that there needed to be clarity on the structure, process and timescales for an appeal. Another view was that there needed to be a system where the adult can access a second opinion at time of admission as an additional safeguard reducing the need to appeal.

One respondent felt that after admission there should be a duty on defined parties to review the need for continued detention and detailed review of the adult’s will and preferences. There was concern expressed that if force, restraint or coercion was being used or suspected and the mechanisms to challenge this needed to be developed further. Another view was that having access to legal representation and therefore legal aid would be important.

Question 39: Who could be responsible for assisting the adult in appealing this in hospital?

94 (58%) responses to this question

The majority view of respondents was that the adult should have access to advocacy services as they can provide unbiased support to the adult, helping them navigate the appeal process and ensuring their voice is heard. Some respondents felt that social workers could be involved as they already have a role within hospital discharge teams and are independent from the hospital.

One suggestion was something similar to appeal mechanism under the Mental Health (Care and Treatment) (Scotland) Act where any person can make referral to a solicitor. If the adult is unable to instruct a solicitor then there should be a mechanism to allow the court to appoint a safeguarder or curator ad litem. Other views were that existing welfare guardian or attorney or anyone with an interest in the person.

A number of respondents felt that MHOs should undertake the role as they are aware of the adults rights and can provide access to independent advocacy and solicitor if required. One suggestion was that it is a role for patient advice and support service who should provide accessible information to the adult.

An enhanced section 47 certificate to prevent a person being treated for a physical condition from leaving hospital, whether temporarily or permanently

Question 40: Do you agree that the lead medical practitioner responsible for authorising the section 47 certificate can also then authorise measures to prevent the adult from leaving hospital?

Total Responses	Yes	No	Comments only
94 (58%)	54	30	10

The majority of respondents agreed that the lead medical practitioner would be the most appropriate person to authorise section 47 powers to prevent the adult from leaving hospital. Despite the majority in favour of the proposal, those who agreed did so with caveats. One respondent commented that whilst we support this principle, the patient journey through healthcare may be more complex and involve more people. If responsibility for care passes to another clinician, it must be clear who holds responsibility at each point in the patient journey. Other views were that the medical practitioner may not be dutied when the adult attempts to leave so this must be permissible to complete by others.

Additional views were that this needed to be regularly reviewed and consultation with independent person such as a MHO. Several respondents felt that the justification for this action warranted two medical practitioner’s to guarantee objectivity. One respondent felt that any extension of s47 to include the deprivation of liberty would require the introduction of additional safeguards and heightened scrutiny.

Of the respondents who disagreed with the proposal, the majority view was that there needed to be a second opinion to safeguard the rights of the individual. A number of respondents felt that an immediate decision to detain a person for 72 hours followed by a requirement to consult with an MHO and a second medical practitioner to agree a 28 day detention would be more in line with the principles of the Act. Several responses raised concern that extending the authority of section 47 would give medical practitioners too much autonomy and there is a risk it would be misused. Other views were that the system requires checks and balances, for both the AWI and for the lead practitioner.

Question 41: Do you think the certificate should provide for an end date which allows an adult to leave the hospital after treatment for physical illness has ended?

Total Responses	Yes	No	Comments only
89 (54.9%)	74	7	8

The majority of respondents who agreed felt that there needed to be an end date so that appropriate arrangements can be made for an adult to leave hospital. An end date would provide assurance to the adult, their carer’s and guardians around timescales for treatment and recovery. A number of respondents felt that there needed to be inbuilt flexibility as it may not always be possible to know how long these medical procedures will take. One respondent felt that a default to 28 days was appropriate depending on the circumstances to minimise administrative burden.

A consistent view amongst those who disagreed was that a review date would be preferable to an end date. An adult’s circumstances may change, the progress of the illness or condition may change and the success of the treatment may vary which may in turn change how long an adult might be expected to stay in hospital. One respondent felt that the form filling would be too cumbersome.

Question 42: Do you think there should be a second medical practitioner (one that has not certified the section 47 certificate treatment) authorising the measures to prevent an adult from leaving the hospital?

Total Responses	Yes	No	Comments only
91 (56.2%)	65	19	7

A couple of respondents who did not agree felt that a MHO would be more suitable rather than another medical practitioner as they would add balance to this. One respondent felt that the lead clinician would be most suitable person to do both as it would be impractical to seek a second opinion. Other views were that a second opinion is not needed for other s47 sections so shouldn’t be required here.

The commonly held view amongst the respondents that agreed with the proposal, was that this would provide greater accountability and reduce the risk of biased decision-making. Some respondents emphasised that training will need to be given to medical practitioners as it is likely that some medical staff will not be experienced in assessing capacity and likely uncomfortable authorising measures which prevent a person leaving hospital. A number of respondents felt that the second medical practitioner should be doctor approved under section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003. One respondent felt that by incorporating a second medical opinion, it would ensure the measures taken are justified, prioritise the individual and reduce the risk of errors.

Question 43: If yes, should they only be involved if relevant others such as family, guardian or attorney dispute the placement in hospital?

Total Responses	Yes	No	Comments only
85 (52.5%)	24	55	6

Of the respondents that disagreed, the consistent view was that a second medical practitioner should be involved from the onset regardless of whether families or attorneys or guardians dispute the admission to hospital as there can be differing views from family members. A number of respondents felt that a review by an independent medical practitioner should be a routine part of the procedure. However, it should still be a duty on this practitioner to seek the views of the family members and proxy decision-makers such as guardians and attorneys. Other comments were that this is an important safeguard for everyone and individuals who have no family to advocate for them need more protection not less. An individuals’ human rights should not rely on others raising disputes as there should be active mechanisms to review the need for detention, which accounts for the will and preferences as a matter of routine.

Of those in agreement, most expressed the view that a second medical practitioner should be involved only if relevant others such as family, guardian or attorney dispute the placement in hospital. A number of respondents felt that if a decision-making proxy has been appointed through legal processes, this should be the primary decision-making mechanism for an individual. One respondent who agreed with this approach felt that this will allow the second practitioner to focus on other clinical priorities and only become involved when absolutely necessary. Another view was that it would be appropriate to deploy this role when there is a dispute.

Question 44: Do you agree that there should be a review process after 28 days to ensure that the patient still needs to be made subject to the restriction measures under the new provisions?

Total Responses	Yes	No	Comments only
92 (56.8%)	73	13	6

Of those respondents that disagreed, some felt that the review period of 28 days should be sooner. Two of those respondents felt that the review timescale should be a graded system from 7 to 14 and 21 to 28 days to reflect the potential of recovery from a range of conditions. One respondent felt that the review process should be continual as 28 days was too long a period to wait in the circumstances.

For those respondents who supported the approach, a commonly held view was that for adults 28 days seems reasonable and will ensure that the patient’s rights are being protected. A common view was that the 28 day period was in line with the current mental health legislation. One respondent felt that they agreed with the 28 day period for the authorisation that the patient can be prevented from leaving hospital but did not agree that this should apply to conveying someone to hospital which should have an early review of 72 hours only. Other views were that clear milestones will support planning and visibility and ensure that the patient’s views are protected.

Question 45: Do you agree that the lead clinician can only authorise renewal after review up to maximum of 3 months before Sheriff Court needs to be involved in review of the detention?

Total Responses	Yes	No	Comments only
88 (54.3%)	51	25	12

A majority of respondents agreed with the proposal. Some respondents felt that a maximum time frame is positive and will provide automatic review and serve as another check and balance. Several respondents felt that this is in line with the principles of least restrictive practice and it is important that deprivations of liberty are not allowed to drift. One respondent welcomed the involvement of the Sheriff Court in the process to ensure that lengthy enforced hospital stays can be legitimately challenged.

Amongst those who disagreed, a common view was that three months was far too long a time period. Many of these respondents felt that the time period should be 28 days which would be in line with similar processes under the Mental Health (Care and Treatment) (Scotland) Act 2003. If a longer period is required, a guardianship or intervention order should be sought. Two respondents felt that the responsibility for this should sit with the mental health tribunal service. Other views were that the proposal is too restrictive and not in line with human rights and section 47 certificates do not represent a sufficiently robust process to allow for continual renewal and a ceiling on the number of reviews is required as 3 months is too excessive.

Question 46: What sort of support should be provided to enable the adult to appeal treatment and restriction measures?

87 (53.7%) responses to this question

A majority of respondents felt that adults seeking to appeal treatment and restriction measures should have access to advocacy services. A number of views were that independent advocacy should be built into care pathways, procedures and guidance and this should be seen from the point of admission. One respondent recognised that advocacy services required additional investment to meet demand and make the safeguards meaningful.

Other views were that a MHO or social worker with specialist training in hospital discharge should be involved. There was also a suggestion that a legal representative should be involved and curator ad litem with legal aid being made available. Other views were that a proxy should be involved in enabling, supporting and empowering the adult to appeal any restriction measures. Throughout the responses there was strong emphasis that there needed to be accessible information provided allowing adults and families to understand their rights, the available support resources and the processes involved.

Clarifying the provision of palliative care under Part 5 of the AWI Act where a welfare proxy disagrees with proposed treatment

Question 47: Do you agree that section 50(7) should be amended to allow treatment to alleviate serious suffering on the part of the patient?

Total Responses	Yes	No	Comments only
93 (57.4%)	79	7	7

Of those respondents that agreed, a commonly held view was that an amendment to the legislation under section 50(7) should provide clarity and bring the legislation in line with the provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003. A number of respondents agreed that this should be provided, that serious suffering is defined, and that is detailed when this is utilised. Other views were this should prevent delays in treatment being received by the patient and is essential to ensure that unnecessary suffering is prevented.

Of those who disagreed a number of respondents wanted clarity on what is meant by “serious suffering” as this may be subjective depending on individual circumstances.

One respondent felt it would be difficult to understand why a power of attorney was being overruled and there was also the view that this could lead to abuse of power and independent oversight and review was required.

Question 48: Would this provide clarity in the legislation for medical practitioners?

Total Responses	Yes	No	Comments only
88 (54.3%)	65	5	18

The majority of respondents who agreed felt that this would provide clarity to medical practitioners as well as relatives, guardians and attorneys. Another common view was that this would help clarify the legal ambiguity regarding the scope of treatment that can be provided. By explicitly allowing treatment to alleviate serious suffering, the law would provide clear guidance to healthcare practitioners helping them make informed decisions without fear of legal repercussion.

One respondent felt that this was appropriate if safeguarding and promoting the adult’s health pending the decision made by the court and is consistent with the underlying purpose of Part 5 of the Act which is to safeguard or promote the physical and mental health of the adult.

Of those respondents that disagreed, one respondent felt that the issues covered were complex and required a more measured approach and it wasn’t desirable to rush ahead with reform. Other views that it would allow clarity but a lot of detail still needed to be worked out and this was in conflict with the duty under the Act to follow the adult’s will and preference or best interpretation of the adults views.

Part 6: Guardianships

Question 49: Do you think the requirement for medical reports for guardianship order should change to a single medical report?

Total Responses	Yes	No	Comments only
106 (65.4%)	56	37	13

A majority of respondents agreed with the proposal that there should be a single medical report for guardianship orders. However, there were a significant number of those disagreeing. Most of the responses were nuanced and agreed or disagreed with caveats.

A significant number of those who disagreed recognised that the proposal offers advantages such as faster decision-making, reduced administrative burden, cost efficiency, and minimised delays. However, the associated risks and challenges outweighed these benefits.

Some respondents commented that the proposal appeared to be an attempt to address a lack of resources and was a time saving exercise. A common view could be summarised by stating that the proposal runs the risk of favouring expediency and efficiency over safeguards and due diligence.

Other respondents thought that two reports make a stronger case with regards to incapacity and a number commented that GPs, psychiatrists and psychologists should be contracted to do these. Some respondents thought that reduction to one report would have resource implications for other professionals and would increase the level of assessment and scrutiny required from social workers, MHOs, solicitors, and sheriffs to compensate one medical report. 

On a final point, a number of respondents disagreed with the proposal around those who lack capacity because of an inability to communicate. The proposal was that where incapacity arises from inability to communicate that the report should only come from a GP. Their comments were that there will be other specialist medical practitioners, largely hospital based, who may be best placed to provide a report in such cases. A small number of adults also may not have a GP so this would be unnecessarily restrictive. Also speech and language therapists should be consulted where necessary.

Of those who agreed with the proposal, the largest numbers were for two reasons. Firstly, that the proposal could help to speed up the process of guardianship orders being processed, avoiding delays. Another commented that this was especially in cases where an individual may not be able to be discharged from acute hospital settings until an order is in place, potentially leading to a deterioration in their mental and or physical health. Another added there was difficulty co-ordinating timeframes of two doctors reports and the MHO report.

Secondly, respondents thought that if there was to be one report, it must be by a clinician with appropriate expertise in the assessment of capacity. Some of these respondents had indicated no in their response to the yes/no question. This should be a psychiatrist (s.22 doctor) or an appropriately qualified clinical psychologist. One respondent added that it could be another medical practitioner (potentially a GP) who has been certified as suitably expert to undertake this work. One respondent added that a Community Treatment Order (CTO) in the Mental Health Act requires a s.22 doctor (psychiatrist) and lasts only for a period of 6 months and is subject to more regular reviews, and readier appeal rights, than a Guardianship Order.

In agreeing to one medical report, a significant number commented that there should be better guidance in the report to ensure a thorough report is produced.

Some respondents welcomed the flexibility of single report by GP or psychiatrist based on who knows the adult best. A few respondents viewed reduced costs as beneficial. Other comments were that in addition to the single medical report there was sufficient protection from the MHO report, the process is simplified and the second report often mirrors the information in the primary report.

Question 50: Do you agree with our suggestion that clinical psychologists should be added to the category of professional who can provide these reports (where the incapacity arises by reason of mental disorder)?

Total Responses	Yes	No	Comments only
105 (64.8%)	95	7	3

The overwhelming majority of respondents agreed with the proposal that clinical psychologists should be added to the category of people who can provide reports for guardianship applications.

Out of those who didn’t express a preference either way, a couple acknowledged that psychologists may be appropriately placed to carry out capacity assessments. However, they did not think capacity tests were a useful tool and thought it would make very little difference who provides them without addressing how they are carried out. Another commented that if clinical psychologists were to be added to the list of those who could complete medical reports, where incapacity is due to ‘mental disorder’ there must be explicit guidance on if this includes when incapacity is caused by dementia to reduce any potential for misunderstanding.

The reasoning for the minority who disagreed with the proposal was based around a preference for a medical practitioner to complete the report. Some thought it should be someone medically qualified and one thought it should be a s.22 doctor’s report allied with an MHO report.

Of those who agreed with the proposal the most common reason was that they were of the view that clinical psychologists were already appropriately trained and experienced to carry out these assessments. A couple of these respondents clarified that they thought clinical psychologists may often be better experienced in diagnosing a mental disorder than, for example, a general practitioner. Further respondents thought that it is not solely clinical psychologists who have the professional competencies in assessing capacity and would prefer ‘practitioner psychologists’ (as registered with the Health and Care Professions Council) who have had appropriate training in capacity assessment to be added to the category of professionals who can provide these reports.

A significant number of respondents agreed as long as there was appropriate training and ongoing competency assessments. One clarified their thoughts by commenting that assumptions must not be made on the level of knowledge and awareness of human rights and disabilities, profound and multiple learning disabilities, dementia etc. Sufficient training must be provided if there are gaps in skills and knowledge. Further respondents were in the same vein, in that they agreed on the basis that the clinical psychologist had the training and experience to do the reports.

Some respondents agreed based on the resources available to be able to do this and felt the proposal addressed the lack of experts and broadened the pool of professionals that could do this. Similarly one thought it reduced the burden on GPs and psychiatrists. Conversely other respondents agreed, but expressed concern about the additional demand on psychology resources.

Other respondents agreed only if there were 2 medical reports and another respondent agreed for clinical psychologists but not with reports being produced by other applied psychologists or non-clinical academic psychologists.

Question 51: Do you think the Mental Health Officer form for guardianships can be improved, to make it more concise whilst retaining the same information?

Total Responses	Yes	No	Comments only
84 (51.9%)	67	12	5

There was a wide consensus between respondents that the MHO form for guardianship applications could benefit from review and improvement.

Some similar concerns were raised by those who disagreed and agreed to the proposal. For instance some of those who disagreed, commented that MHOs should be resourced rather than the forms being changed. One comment was that the solution to a lack of MHOs should not be to remove various checks and balances in relation to the application process. Another was that rather than trying to change the form, the review should look at the tragic underfunding and staffing crisis in MHO roles. Some of those who agreed with the proposal also reflected that MHOs were under resourced.

Another common concern between those who agreed and disagreed was that a more concise report should not undermine the principles of the Act. A couple of those who responded no, thought that this would happen and undermine the check and balance role of the MHO. A significant number of those who responded yes voiced concerns that detail should not be lost in the report. A large proportion of these thought the design could be improved but considered that this would only be appropriate to the extent that it allows for full and appropriate consideration of the adult’s needs and rights. Some of these thought MHO reports should focus on the Principles of the Act, the Adult’s views, the proportionality of the Powers sought and the suitability of the applicant.

A significant number of those who agreed with the proposal thought that there were repetitive sections in the form and that duplication should be removed. One commented that the form was hugely repetitive and does not give enough free text space to include pertinent information. Another that the current form is repetitive and makes it difficult for the writer to develop a clear outline of the circumstances and assessments undertaken, and for the reader to follow the narrative being provided by the MHO.

Some respondents thought a more concise form would save time. Others who agreed wanted MHOs to be involved with the change. Another commented that solicitors and sheriffs should also be involved. A few respondents reflected that contacting every relative even when they are not involved and have no contact with the adult can be very time consuming and cause delays. One respondent suggested that perhaps a recommended maximum number of words could be included as a guide. There can be a lot of repetition and duplication, which might be reduced with an improved form identifying key factors as a guide.

Question 52: Do you think the ‘person with sufficient knowledge’ form can be improved, making it more concise whilst retaining the same information?

Total Responses	Yes	No	Comments only
80 (49.4%)	62	4	14

The vast majority of respondents were in favour of reviewing the form and making it more concise. Detail was less in the responses, with some respondents citing similar reasons they gave for review of the MHO form.

A small number of respondents were undecided. Of those that left a comment one felt the form was vague, subjective and an unnecessary bureaucratic exercise, adding complexity. Another thought the “person with sufficient knowledge” could be a useful cross-check where issues are raised in the report prepared by an MHO but the exercise was vulnerable to becoming no more than a formality.

Not many respondents said no to the proposal. One that did suggested the issue could be resolved by specifying who should complete the form, for instance an MHO or solicitor.

Of those that said yes, most merely agreed with the proposal. The small number of comments left highlighted that the report was overly long and repetitive. Other comments were on the lack of formal qualifications of the person completing the report, there should be more specific questions regarding knowledge of the adult including an understanding of the adult's financial circumstances (and questions similar to guardian’s declaration form) and that shorter forms would be beneficial to reduce the time to complete the forms. However, there is a concern that this may impact on the effectiveness of the information contained therein.

Question 53: Should the person with sufficient interest continue to be the person who prepares the report for financial and property guardianship?

Total Responses	Yes	No	Comments only
73 (45%)	41	13	19

A majority of respondents were in favour of the ‘person with sufficient knowledge’ continuing to prepare the report for property and financial guardianships. However the majority of those who left a comment, whether yes, no or undecided pointed towards some clarity being required in who the ‘person with sufficient knowledge’ should be.

One respondent who was undecided commented that MHOs feel they are not suitably qualified to assess a person’s suitability to make complex financial decisions. This should be done by those who have extensive experience in the area. Another undecided respondent provided an alternative view in that the report should be prepared by the person who is best placed to write the report. This should be determined by the knowledge and understanding of the individual and how appropriate it is for him/her to complete the report. Consistency can be useful when writing reports, but this should not be at the expense of the quality of reporting to support decision-making by the sheriff.

Of those who said no and left a comment, a couple thought OPG were best placed and one commented that it should be an appropriately qualified person with experience in financial and property matters, with their costs being met from the adult’s funds.

The theme of an appropriately qualified person was carried through into the yes responses. A few who left a comment felt it should be carried out by an independent professional, such as social workers, MHOs or solicitors and not a family member or friend. Another thought someone who is appropriately qualified in financial matters should do this and one commented that there needs to be at least independent corroboration of the information provided by the applicant.

Some respondents who left a comment only were of the view that to move from the “person with sufficient knowledge of the adult’ completing the report on financial and property guardianship would further formalise the process, potentially add costs to families and/or slow the process down further.

Question 54: Do you agree with our proposal to replace the second part of the ‘person with sufficient knowledge’ report with a statutory requirement to complete the OPG guardian declaration form?

Total Responses	Yes	No	Comments only
74 (45.7%)	48	18	8

A clear majority of respondents were in favour of the proposal.

Of those that were undecided one commented that some applicants may not know exactly what they are getting into and completing these forms might help them to focus, to understand better, and possibly head off problems at the outset.

Of those that disagreed and left a comment most were concerned that the proposal risks adding another layer of bureaucracy and may cause further delays in trying to get orders granted.

Of those that agreed, a few expressed concerns about delay, with another expressing support as long as OPG had enough resource to avoid delay. Conversely a couple thought that this would streamline the process and reduce delay. Others observed that the OPG guardian declaration form will provide further safeguards to people’s financial matters as it is more detailed.

Question 55: Should sheriffs be afforded the same discretion with mental health officer report timings as they are with medical reports?

Total Responses	Yes	No	Comments only
89 (55%)	79	3	7

An overwhelming majority of respondents supported the proposal.

A comment from a respondent that disagreed was that the limit of 30 days for MHO reports should remain to ensure that there is a reasonable and defined timescale to complete reports. What needs addressed is the declining number of MHOs and the need for additional resources in this area.

Of those who responded yes and left a comment, a significant number agreed with equity of approach and that it seemed proportionate to align MHO report requirements with those of medical reports.

Further respondents referred to the co-ordination difficulties in getting the medical and MHO reports within the same timescale. This would allow for equity in consideration of the reports when there are difficulties with co-ordination/timescales outwith control of the MHO.

Some respondents commented that the proposal would allow applications to progress more quickly, minimising delay. Others had a similar view in that all of the MHO reporting elements have a high potential for variability and change therefore a statement from the MHO advising that there is no change in all these areas would need to be provided to offer assurance that significant changes are not missed or overlooked by the court.

A number of respondents thought there should be a time limit, highlighting the difference between a few weeks and a few months over the 30 day limit. One respondent further suggested that there could be an upper limit on how late any report may be lodged in guidance which is given to sheriffs. If this additional leeway is in the guidance given solely to sheriffs rather than the legislation, this should reduce the risk of people considering any upper time limit as “extra time” and choosing not to act timeously.

Question 56: Do you agree that the best approach to cater for urgent situations is to amend the existing interim guardianship orders?

Total Responses	Yes	No	Comments only
91 (56.2%)	62	15	14

A large majority of respondents agreed with the proposal. However, questions were posed by those who left comments who were undecided, disagreed or agreed to the proposal.

A few respondents did not agree with the 5 day period for the sheriff to make a decision. One respondent commented that there should be no difficulty in hearing an urgent application within 5 days and that the courts can and do deal with an urgent application on the day this is lodged, if necessary. There may be a good reason why the application should be continued for more information, such as a report from a safeguarder. One respondent thought the 5 day timescale may also be difficult to meet given the demands on the court service currently. Another commented that the court is already willing to consider applications for interim orders swiftly, usually well within the 5 days suggested and that a 5 day period could create delay as they didn’t have to wait this long. A respondent added that creating a separate process risks the situation not being considered holistically and an absence of powers to appropriately look after the adult once moved. Courts already assign interim hearings very quickly and applicants should be thinking about the long term situation right at the start. In urgent situations it is possible to prepare full applications very quickly.

One respondent highlighted that there should be clarity around the length of time for interim orders. They commented that interim orders are usually time limited to 3 and then 6 months, but there are some difficult cases where it is necessary for interim orders to be in place for longer and the sheriff should have a discretion to extend interim orders for as long as is necessary and proportionate.

One respondent commented on the length of a guardianship order. They were of the view that the maximum time limit for 12 months (and 2 years on renewal) is likely to be particularly onerous for the court if the court has to deal with a renewal application every 12 months or 2 years. This could involve multiple renewal minutes for a person who does require deprivation of liberty for the foreseeable future/lifetime. They suggested it would be better for the court to fix the length of the guardianship order that is appropriate (say 3 or 5 years) and that it be for the local authority or other body to conduct the reviews as to the appropriateness of the deprivation of liberty.

A number of respondents commented on the criteria for an urgent case and that this needed to be considered and delineated. Using an “imminent risk to welfare” could narrow the circumstances in which a local authority can seek interim orders. This would not include delayed discharge cases which is when interim powers are most used currently. Some thought the use of interim guardianships for delayed discharge cases should be specifically in the legislation. A couple of respondents explained that at present it is challenging to argue that applying the current criteria for an interim order works for someone in hospital who is safe but lacks capacity. This is not an urgent situation that will immediately effect the persons welfare. It would in the medium to longer term because people become institutionalised in hospital. If not specified, any minor changes made to the legislation will have no impact on delayed discharges.

Another respondent, in the same vein commented that expediting this process is not about medical convenience, it is about getting around more rapidly to realisation of rights, especially where individuals are currently in inappropriate settings (which could even result in an Article 3 breach). They further explained that continued hospitalisation beyond the point where it is necessary for physical or mental health care constitutes an imminent or immediate risk to patients’ health and welfare. This includes significant risks of deterioration and mortality. These situations should therefore be amongst those considered urgent and encompassed under the proposals.

Conversely one respondent was of the view that the criteria for an urgent case required to be based on the person’s needs and not for example, to vacate a hospital bed.

Some respondents were concerned about the pressure the proposal would put on resources. A few commented that it is not reasonable to expect MHOs to be able to contact, interview, assess information and collate a report within a period of seven days. This would likely lead to a reduction in scrutiny of a case which could result in poor decision-making.

Some respondents commented that an interim application followed by a full application was double the work for MHOs, doctors and solicitors, meaning double the cost for local authorities and other applicants.

In the same vein a few respondents were unclear how an application could be described as interim if it is not accompanied by the full application. If further reports have to be prepared alongside a further application for a full order it would increase work. There was potential for duplication of effort and inadvertently increasing the pressure on services as the interim application will require to be followed up by a full guardianship application. This has implications both for MHO services and for medical practitioners providing reports of incapacity who will be required to provide multiple reports for a full order to be granted.

Some respondents were concerned about how the ability of the adult to represent their views at court will be protected in the proposal. They felt a hearing should be held to consider the interim order and its necessity. The urgency for an interim guardianship order must be balanced against human rights especially if deprivation of liberty is being suggested and is against the individual’s will and preference. They further commented that there should instead be an automatic right of appeal

triggered when an order is made. When triggered an independent advocate should be appointed automatically as in the Mental Health (Care and Treatment) (Scotland) Act 2003 to ensure that a person has all the support they need and to ensure that their rights are met. To accomplish this, sufficient resourcing and staffing would need to be available. This could be achieved in a similar vein to the advocacy service that was legislated for in the Social Security (Scotland) Act.

In relation to this one respondent commented that there also needs to be some consideration of timely access to legal aid to match this abbreviated process.

Another queried whether an interim guardianship order would be used to address situations which do not involve a deprivation of liberty, including urgent issues in relation to an adult’s property and financial affairs and if the proposed procedure would address this.

One respondent, in support of the proposal, commented that practitioners had highlighted that currently an interim guardianship order requires the same amount of work as a full order. It is only the court process that can be expedited, and this is not always the case depending on the jurisdiction.

A couple of respondents thought there should be further engagement with professionals who work on a daily basis making applications to court on behalf of local authorities and in private practice to explore proposed options and identify solutions.

Question 57: Do you agree that an abbreviated mental health officer report together with a single medical report should suffice for a guardianship order to be accepted by the court in the first instance?

Total Responses	Yes	No	Comments only
88 (54.3%)	66	17	5

There was a clear majority in favour of the proposal.

Of those that were undecided and left a comment some required clarity on the potential resource implications of this proposal and whether there is capacity for MHOs to undertake this work at such short notice, when they would still have a requirement to complete the full report. Other respondents noted the MHO report should still demonstrate how the principles of the AWI Act have been followed. They felt that if this proposal was introduced, it must be carefully and closely monitored to ensure that it is working and there is sufficient safeguarding still in place.

Of those that answered no and left a comment one thought that, particularly if we are removing someone's liberty, a comprehensive report with all the evidence and detail of risk is required. MHOs are skilled in completing comprehensive reports within short time scales and this would also avoid a duplication of work. On the same theme, a few were of the opinion that it takes as much time and effort to produce an abbreviated report as it does a full one and the proposal doubled work for the MHO.

Another respondent was concerned that an abbreviated MHO report may not provide the court with sufficient information to enable an informed decision to be made. They continued that measures authorised by the court may well involve a restriction upon the rights and freedom of an otherwise autonomous adult, and may even involve an element of deprivation of liberty. An interim order may also involve authorising steps to be taken which in practical terms are irrevocable. They felt it was not appropriate for these far-reaching decisions to be made on the basis of limited information.

Some of those who agreed with the proposal also had concerns about what would be left out of the report and that there was the potential for this amendment to actually diminish the safeguards for the adult that are currently in place.

One respondent commented that the report should be done in a way that MHO can incorporate the abbreviated report into the main report, like an executive summary but not in a way that demands additional or different information or investigation. The current pressure on MHOs is already high.

A number of respondents, whilst agreeing with the proposal, thought the 7 day timescale could be challenging, given MHOs are already not meeting statutory timescales.

Question 58: Do you agree that there should be a short statutory timescale for the court to consider urgent interim applications of this sort?

Total Responses	Yes	No	Comments only
89 (55%)	72	9	8

The vast majority of respondents agreed with the proposal but as with the other questions around the interim guardianship process, caveats were often added to the agreement.

Some respondents disagreed with the proposal on the basis that in their local authority area they had no difficulty in having interim applications heard at short notice. One of these gave an example in a recent case, social work approached legal with an urgent situation on a Friday, a case conference was held on the Monday and a hearing on interim orders was held in court on the Thursday with orders granted that day. They opined that the biggest delay in the entire process was in obtaining two medical reports. The proposal to move to one medical report is the best proposal put forward to speed up the granting of interim orders. A couple thought that smaller sheriff courts may struggle to cope with a timeframe of five calendar days.

A number of respondents, spanning those who agreed, disagreed and were undecided, focussed on the rights of the adult in the interim process. Some, whilst agreeing, thought speed of process needed to be carefully balanced with ensuring the rights of the adult to oppose the application are promoted and upheld and that the court has sufficient information on which to decide.

One respondent elaborated on the above to comment that it was essential that the adult must have the interim application intimated upon them and be given an opportunity to have their views heard if they so wish. It may be difficult for an adult to make representations themselves, or to arrange representation by an advocacy worker or solicitor within those timeframes. Fewer solicitors are specialising in this area of law, and fewer still are undertaking legal aid work due to the poor rates of renumeration. They were of the view that, if it is known that an adult is opposed to the granting of interim powers, particularly where a deprivation of liberty is sought, that a safeguarder or curator ad litem should be appointed to safeguard the adults interest. This is in line with the procedure under the Mental Health Act where an application to detain a person in hospital under a CTO is made.

One further respondent commented on the timescale and adults’ rights by suggesting that the proposal be amended for flexibility so that the sheriff should begin considering the application within five days but follow due process to take the time to consider each individual’s case and what they would want to happen.

Other respondents raised resource as a concern. Some respondents agreed with the proposal in principle but thought that the current capacity and workloads of the courts may make this idea impractical. A further respondent added concerns about pressure on council legal services to this. A number of respondents commented that more guidance would be desirable about what would fit the criteria for an urgent case as this had the potential to create further pressure on already stretched resources.

Question 59: Do you agree that further medical reports are not required when varying a guardianship to add either welfare or financial powers?

Total Responses	Yes	No	Comments only
86 (53%)	42	37	7

There was a much more even split in the numbers for and against this proposal, with a slight majority agreeing with it.

Those who disagreed with the proposal and left a comment tended to give much more detailed reasons for their disagreement. The main reason behind their disagreement was that capacity should be decision specific. A common view was that respondents agreed with the sentiments that the original medical report will only consider capacity for the original application e.g. welfare power. If a new application is for financial powers, capacity will need to be considered for that. It may be that the adult does not have capacity in relation to finances but does in relation to welfare (or vice versa). Capacity should be decision specific.

Further respondents had similar reasons for disagreeing with the proposal and their reasons could be summarised by the comment that incapacity is not an "all or nothing" concept - it is to be judged in relation to particular decisions. To assume that incapacity relates to global decision-making is contrary to the spirit of the original legislation which emphasises the need to assess capacity against decision specific powers and to keep under regular review.

Some respondents who disagreed mentioned the age of the original report. They were of the opinion that consideration should also be given to when a medical assessment was last conducted. Out of date assessments should not be used to inform new decisions around capacity. It is essential that fair and due process is respected to support appropriate variance to guardianship orders and to protect and uphold the rights of adults.

Whilst disagreeing, a number of respondents thought that a variation may only require one medical report.

Of those that agreed with the proposal a few respondents agreed where there had been no significant change since the original medical report. Otherwise, an updated report may be appropriate. Further respondents agreed and thought that the sheriff should have the power to ask for additional reports when it is felt to be necessary.

Some respondents who left a comment agreed on the basis of speed and efficiency. One commented that it would optimise clinical time while providing opportunity to seek a further medical report if required. Another agreed if it made the process of adding either welfare or financial powers to an existing guardianship more efficient and removes layers of ineffective bureaucracy which is a consistent criticism of the guardianship system.

Some respondents agreed on the basis that there should be a duty on the MHO/person with sufficient knowledge to comment on the appropriateness of any existing medical report to the new decision-making powers being sought, and to advise the court if they believe a new medical report is required.

Other respondents, in not answering yes or no required clarity on the legislation. They commented that there is a difference in practice across the country as to how welfare or financial powers are added. Some court practice is to require a new application whereas other courts deal with this by minute procedure. A new application would require an MHO report/suitability report and two medical reports whereas a minute would not. They thought it may be helpful to clarify this nationally.

Question 60: Does the current approach to length of guardianship orders provide sufficient safeguards for the adult?

Total Responses	Yes	No	Comments only
83 (51.2%)	50	27	6

A majority of respondents felt that the current length of guardianships was appropriate. Amongst those who disagreed there was concern about the level of review. A larger number of those who disagreed and left a comment was that three years should be a maximum amount of time granted for a guardianship order. One respondent thought there should be more regular and frequent reviews to ensure the legislation is ECHR compliant and in line with practice in other jurisdictions. Each first guardianship order should be granted for a period of 12 months, unless there is a compelling reason for it to be granted for a longer period. Some commented that in a small number of circumstances, in cases where it can be evidenced that the adult’s condition has deteriorated, or has no prospect of improving, perhaps for those with the most complex needs and for whom the process may be particularly distressing, or those with long term conditions such as dementia, it may appropriate to grant a longer order.

A common thread through the responses of those that disagreed and left a comment was that there should be regular review of the guardianship order. One respondent commented that there should also be the option for individual, their family, carers and their trusted persons to request for a review of the order in the interim if anything changes. A couple of respondents commented on a lack of review by local authorities.

A significant number of those who agreed were of the opinion that the Act already specifies the default duration as three years (then five on renewal), and that the current guidelines for the length of the order are sufficient. This matched their own experience of length of guardianship orders granted. They thought decisions about this should be made against the framework of the principles in the Act, including in terms of following the least restrictive principle and seeking to have shorter duration periods where applicable. One commented that 3-5 years allowed for an appropriate time for the order to be supervised and reviewed effectively. Another hoped there would be sufficient flexibility in the new model that at a sheriff’s discretion a longer period could be applied if there are safeguards such as visits. They opined that the lack of agents providing legal aid mean that agents are busy with renewals and are unable to service new work, if indeed, they are happy to take legal aid.

Question 61: Do changes require to be made to ensure an appropriate level of scrutiny for each guardianship order?

Total Responses	Yes	No	Comments only
77 (47.5%)	42	26	9

A majority of respondents felt that changes required to be made to ensure an appropriate level of scrutiny for each guardianship order, with a significant number of respondents disagreeing.

In looking at the responses of those who left a comment, similar reasons were given regarding a lack of resources from those both agreeing and disagreeing. Some of those disagreeing thought the correct structure was in place, the problem was the lack of resource to implement this. One respondent commented that orders are required to undergo scrutiny at twelve weeks, six months and again at one year within the first year of issuance. Following this period, a supervisory visit by a social worker is conducted annually. While some partnerships demonstrated a stronger commitment to applying this level of scrutiny diligently, the challenge lay not in the adequacy of the scrutiny itself, but rather in the capacity of these partnerships to implement it effectively due to resource constraints. Overall, the respondent thought the established scrutiny process for orders was appropriate.

Similar sentiments to the above were reflected in some of those who agreed with the proposal. The change they required was more resource for the existing structure. One respondent was concerned about funding for local authorities to provide this responsibility. They thought it was essential that local authorities were able to supervise private guardianship orders as well as local authority orders, but without the funding local authorities would be unable to continue to provide this service.

Further respondents thought that resources should be provided so that there was availability of independent advocacy, including non-instructed advocacy, as well as legal support (if necessary uninstructed support) to ensure the views, wishes and feelings of the adult are properly considered.

Other respondents commented that more scrutiny should take place where there is deprivation of liberty. One commented that there should be more scrutiny over cases with higher restrictions on individual's liberty, if individual's wishes are not able to be ensured due to risk and if there is disagreement about care, treatment and support.

Question 62: Is there a need to remove discretion from the sheriff to grant indefinite guardianships?

Total Responses	Yes	No	Comments only
86 (53.1%)	37	45	4

There was a narrow majority of those who disagreed with the proposal and would prefer for the sheriff to keep discretion to grant indefinite guardianships.

Some respondents who thought the sheriff should retain discretion to grant indefinite orders thought that there were cases where this could be justified. Examples given: where the person is elderly with dementia or significant learning disability; where someone has a degenerative disorder and that their abilities will continue to decline; or where prognosis (either through change in condition or through rehabilitation) is of no improvement or not of sufficient improvement for the person to be able to make a capable decision in the areas being specified.

One respondent who answered no thought there should be regular periods of review to ensure that this order remains appropriate in accordance with AWI principles. Other respondents thought that indefinite orders had reduced significantly over the years and that the sheriffs were using their discretion appropriately.

The vast majority of those who wanted to remove the sheriff’s discretion in this area and left a comment mention the human rights of the adult. A few commented that indefinite orders would not sit comfortably with human rights principles. A significant number of respondents went further and did not believe indefinite orders were in accordance with rights under ECHR (Article 5). One respondent opined that indefinite orders could be imposed by default in some cases, another commented on the lack of consistency between areas. A further respondent commented that there should be adherence to the existing “normal” periods of three years and five years in section 58(4) and section 60(4)(b) respectively. These periods could be shortened but discretion to extend past this should be removed.

Question 63: If you consider changes are necessary, what do you suggest they would be?

67 (41.4%) responses to this question

Respondents were invited to put forward any changes they thought were necessary. As such there were a wide variety of responses, not all of which can be listed here.

A significant number of respondents commented that a move to a tribunal setting would be more conducive to the involvement of the adult. For example, one comment was that applications for orders should be removed from the sheriff court and placed in a more informal environment where service users and caregivers can actively participate in the decision-making process regarding orders. In the respondents view the Tribunal system would meet these requirements.

Some respondents commented that for the adult to provide their views, there should be increasing access for the adult to a safeguarder, a curator ad litem, or advocacy services; access which is often restricted at times due to lack of public funding.

The wide variety of views will be considered as the review of AWI legislation continues.

Question 64: Which of the following powers should guardians, attorneys and interveners be expressly excluded from using on behalf of the adult?

84 (51.9%) responses to this question

The table below shows the number of respondents that thought guardians, attorneys and interveners should be expressly excluded from using the powers on behalf of the adult:

Power	Number of responses
Consenting to marriage or a civil partnership	69
Consenting to have sexual relations	63
Consenting to a decree of divorce	52
Consenting to a dissolution order being made in relation to a civil partnership	50
Consenting to a child being placed for adoption by an adoption agency	62
Consenting to the making of an adoption order	61
Voting at an election for any public office, or at a referendum	65
Making a will	63
If the adult is a trustee, executor or company director, carrying discretionary functions on behalf of them	55
Giving evidence in the form of a sworn affidavit	67

In each case a majority of those who answered one or more parts of this question thought the power should be excluded. Nuances in respondents’ positions were drawn out in those who left a comment.

Some respondents preferred to leave general comments rather than address each individual proposal for exclusion. Some saw the ability of the proxy to make decisions in the areas concerned as supportive and enabling. Some thought there should be no extension of existing exclusions beyond the existing ones which are effectively covered by other provisions, including other provisions in legislation, to achieve the same purpose on behalf of the adult.

One respondent thought that each case should be taken on its own merits, rather than a blanket exclusion. They commented that the bar for court intervention was already very high and absolute exclusion of these powers may not be necessary where the court was given the opportunity to recognise the ‘weight’ of the proposed intervention, having regard to the facts and circumstances. They continued that based on the likely ‘one-off’ nature of the listed actions, it may be that an intervention order (as opposed to time-limited guardianship power) was a more suitable means of authorising interventions of this nature. However, the court should have the power to decide this on a case-by-case basis.

Another thought a blanket ban without any consideration of the particular circumstances is unlikely to have sufficient safeguards for proportionality. They suggested that if there are concerns about elements they could be excluded by default, and only permitted if specifically authorised on cause shown. A few respondents had a similar view in that they supported adding the powers to this list of exclusions with the addition of a caveat which states “unless specifically asked at court for this to happen”.

Other respondents supported adding powers to the list of those excluded, as adults have rights that are not and should not be restricted. Excluding these powers allows the adult to remain in control of their life and are essential to their dignity, individual autonomy and independence as a person. Another supported exclusion on the basis that capacity is decision specific, which means just because a person has incapacity in one area that does not mean they can be assumed to have incapacity in other areas.

Some comments on specific powers are below:

Consenting to marriage or a civil partnership – One respondent commented that they supported exclusion as the action in question was an intimate personal choice which could not be meaningfully made by a proxy.

Consenting to have sexual relations - One respondent commented that they supported exclusion as consideration of whether an adult with incapacity can engage in sexual activity was decision specific and potentially complex. The Mental Capacity Act 2005 (s27(1)(b)) provided that no person could consent to sexual relations on behalf of another person. They thought it would be appropriate to align the 2000 Act with this provision. Enabling a guardian to consent to sexual activity where such activity constitutes a criminal offence would also be problematic and the proposed exclusion avoided this scenario.

Another did not support exclusion as there were concerns about potentially undermining an adult's autonomy and ability for supported decision-making. Decisions about sexual relations need to be carefully considered, as excluding this power may have unintended consequences. For instance, an adult may have the capacity to consent to sexual relations but may need support with contraception or protection from harm.

Consenting to a decree of divorce – A significant number of respondents commented in more detail about their lack of support for this being in the list of exclusions. None commented in depth in support. Of those that commented against exclusion there was a common thread of concern in cases where there was a legally witnessed expression of wishes in place, where at a time when they had capacity, the individual stated they were pursuing divorce or dissolution but felt that this process may extend beyond their ability to make further capacitous decision around this area. One respondent pointed out that a guardian currently requires an express power to be able to “pursue or defend an action of declarator of nullity or divorce or separation in the name of the adult” (s64(1)(c). It was not consistent with this to import a general prohibition on consenting to marriage, divorce, or dissolution in any circumstances.

Consenting to a dissolution order being made in relation to a civil partnership – These are similar circumstances to divorce and so some respondents referred to their previous answer.

Consenting to a child being placed for adoption by an adoption agency – Those that agreed with adding to the list of exclusions commented that the court could make an adoption order without the consent of persons with parental responsibilities if they are incapable of giving consent; are unable to discharge those responsibilities; and are likely to continue to be able to do so. They continued that in situations where a parent does not have capacity it is appropriate for their Article 8 rights (and those of the child) to be recognised and addressed in the process of the court considering dispensation with their consent, rather than such consent being provided by their representative.

Consenting to the making of an adoption order – This is similar to the above and one respondent referred to their previous comment, incorporated above. Voting at an election for any public office, or at a referendum – Respondents gave comments with differing views. One thought this should be excluded as the proxy could not possibly know the adult’s informed views on a political decision. They thought it was likely to be abused and would grant the proxy the ability to cast two votes. There would be no way to scrutinise the arrangement. On the other hand another respondent thought the issue was finely balanced. They were of the view that there may be situations, particularly with a power of attorney, where it may be that the person had long standing and settled views which they would continue to give effect.

Making a will – One respondent, in support of exclusion, commented that if the adult had not made a will prior to losing capacity it would be extremely difficult to know their views on how to frame a will. This could be open to abuse by individuals seeking to grant favourable terms to them or their preferred relatives.

Other respondents, not supporting exclusion thought that there may be situations where it would be advantageous, particularly for an attorney or intervener, to make a will which might give effect to the known or reasonably inferred wishes of the adult even if they did not make formal provision for them in their lifetime. Another pointed out that intervention orders have already been granted in respect of Wills and the exclusion of this power would contradict this precedent. 

If the adult is a trustee, executor or company director, carrying discretionary functions on behalf of them – One respondent commented that exclusion would likely conflict with s.6(2)(b)(ii) of the Trusts and Succession Scotland Act 2024 which, once in force, will allow a guardian or attorney to a resign on behalf of an incapable trustee where they are the sole trustee and appoint a substitute trustee in their place.

Giving evidence in the form of a sworn affidavit – Respondents who left a comment were on the whole in support of exclusion. They thought this should be excluded as if the adult has the capacity to understand questions and the giving of evidence, they should be able to do so in their own right.

Question 65: Are there any other powers you think should be added to a list of exclusion?

Most respondents did not have any extra powers that they wished to add for consideration. Some were received and were as follows:

• Power to exercise any social media;
• Communicating with trusted individuals;
• Gender identification;
• The issue of privacy laws should be considered so that an attorney or guardian cannot consent or give authorisation to the adult being filmed for public viewing;
• Adding an exclusion to the action of moving the adult out with the UK without at least judicial oversight;
• Decisions about irreversible voluntary medical procedures, including sterilisation, should be added to the list of exclusions;
• Other capacity acts exclude ‘consent under fertilisation and embryology act’; and
• Powers related to consenting to organ donation, or agreements involving organ donation, should be added to the list of exclusions. These decisions carry significant ethical and personal implications and should remain outside the scope of proxy decision-making.

Part 7: Approach to Deprivation of Liberty

Question 66 : Do you agree with the overall approach we are proposing to address Deprivation of Liberty?

Total Responses	Yes	No	Comments only
81 (50%)	57	24	-

Those who agreed with the overall approach felt that this could be less restrictive and may reduce the overall use of guardianship orders. One response said this was a thoughtful response focused on optimising liberty whilst balancing people’s rights. However, many felt that more information was needed, there was concern about possible lack of safeguards and the piecemeal nature of the approach proposed. It was felt that this risked more confusion and unintended consequences with further detail needed on the draft regulations and codes of practice needed to comment meaningfully.

Clarity was sought around when a person might be deemed able to make a decision, and some disagreed with the premise that people can consent to a deprivation of liberty.

A number of responses felt that the proposals did not go far enough, and that we should be looking to implement the wider reforms proposed in the SMHLR.

That being said, a significant number of those who responded negatively to this proposal, agreed with the subsequent proposals for change in the consultation that make up the approach to deprivation of liberty.

Question 67: Is there a need to consider additional safeguards for restrictions of liberty that fall short of deprivation of liberty?

Total Responses	Yes	No	Comments only
70 (43.2%)	45	25	-

This question raised a number of issues. Local authorities in particular were concerned that any duties arising from this would lie with the local authority and there is simply not the resource to support this. There was a view expressed by many, including the Care Inspectorate, that restrictions that fall short of deprivation of liberty should be considered as part of regular reviews of care and support undertaken by care service providers.

Again clarity was sought on what constitutes deprivation and what constitutes restrictions so we can consistently identify what safeguards are needed as often both may be needed in a given situation.

One response stated they agreed with the principles described in the SMHLR for both restrictions in liberty and deprivation of liberty, namely that "deprivation is proportionate and will demonstrably lead to more respect, protection and fulfilment of the person's rights overall”. Provided this principle is upheld we do not consider there to be a need for additional safeguards. Another said “the difference between a deprivation of liberty and a restriction of liberty is simply a matter of degree or intensity rather than necessarily of nature. We believe that there are many scenarios, particularly in social care settings, that by their nature would be considered restrictions of liberty that may benefit from additional safeguards to ensure that adults’ article 5 rights are respected”. This was also another area where many felt that independent advocacy would be of benefit.

Deprivation of liberty and powers of attorney

Question 68: Do you agree with the proposal to have prescribed wording to enable a power of attorney to grant advance?

Total Responses	Yes	No	Comments only
82 (50.6%)	71	11	-

This proposal was widely welcomed but those agreeing did so with many caveats. For the process to be fully explained and understood by the granter and attorney, training would be needed for the attorney and any prescribed wording would need to be clear. The effort to promote powers of attorney in Scotland would be undermined if this provision was not included, in the opinion of several respondents. Others responded that this was an advance directive rather than a power of attorney as such and a directive of this nature would need to provide clarity on what powers were being granted, what circumstances these would cover, and when these would be activated. Such a decision should not be taken lightly, and this may require those providing advice, such as lawyers and other advisers, to have sufficient knowledge and training to advise their clients.

Another response commented that they support the issues that need to be covered in the prescribed wording. In particular, they supported the requirement to seek a determination from the sheriff should the adult later object to their consent being acted on. Consideration may need to be given to the length of time permitted between the making of the advance consent, and its enactment. Someone may wish to grant advance consent to receive care in a specific facility, but if many years elapse before this is required the standard and provision of that facility may no longer reflect what the individual was anticipating

Of those that did not agree, there was concern that a person’s view may change over time so the person’s wish at the time of granting the power of attorney may have changed significantly by the time the proxy is in a position to make those decisions. The danger of someone being granted generalised powers and abusing them was highlighted. One response commented that they believed we cannot truly know how a person will feel in a situation where they may require to be deprived of their liberty. There is also the risk of bypassing consideration of a person’s rights when a decision is being made.

Question 69: What are your views on the issues we consider need to be included in the advance consent?

69 (42.6%) responses to this question

A majority of the responses agreed with the issues proposed in the consultation. Clear evidence that the granter and attorney are fully informed and comprehend what is being authorised was the most common response. In addition, supporting people to think through potentially distressing options for their future is necessary. There should be an immediate right to appeal. Clarity around how capacity will be assessed is required and that perhaps we should talk of prior authority to confine rather than advance consent. Others commented that it is vital that the proposal that the terms of article 5 of the ECHR be explained to the granter in a fully accessible way. Finally, any suggestion that the adult has changed their mind must be taken seriously, with the determination from the sheriff welcomed.

Question 70: What else could be done to improve the accessibility of appeals?

69 (42.6%) responses to this question

This open question resulted in a wide range of responses, the most frequently repeated of which was the need for more independent advocacy, direct access to independent advocacy, and having an ‘opt out’ approach to independent advocacy. In addition, an easy process, clear guidance, and the need for all practitioners to be aware of the right of appeal and can point to clear guidance on how to do this. Several respondents expressed the view that the role of the safeguarder and/or curator should be more clearly defined in relation to appeals. One organisation responded that the literacy levels of the person making the appeal; language barriers and the support that may be required to overcome this; digital exclusion; practical supports such as easy-read formats; and the cost of making an appeal and how this can be considered equitably and sensitively to their circumstances are all factors that should be considered to improve accessibility.

The question of resources was raised again, as was the lack of availability of legal aid, the lack of solicitors in Scotland specialising in this area, and several respondents commented that the process would be more accessible if it were moved to a tribunal setting rather than the sheriff court.

One respondent commented that the key lay with supporting a person through this process and a system should be developed where professionals with experience working with people who have challenges with decision-making could in essence be a ‘bank’ of trained staff that can be called upon to support people.

Question 71: What support should be given to the adult to raise an appeal?

69 (42.6%) responses to this question

The answers to this question referred back to answers to question 70 in many cases, but also recommended independent advocacy again, relevant legal support, a supported decision-making framework with accessible guidance. Statutory support from social workers and MHOs was mentioned by several respondents and the need for legal aid was mentioned by many.

Question 72: What other views do you have on rights of appeal?

60 (37.0%) responses to this question

Again many of the responses here referred back to answers provided for questions 70 and 71. The small number of additional comments included the need to have tight timescales for appeals. Some respondents sought more clarity on the grounds of appeal, and who would have the right to raise an appeal. Local authorities in particular were concerned that their assessment on the need for a placement may inappropriately be open to appeal. The view that there should be provisions similar to those available for individuals subject to mental health legislation was expressed by a small number of respondents. But the question of resourcing appeals at all levels was also raised by many. The view that the right of appeal is essential but is only a genuine right of appeal if funding and representation can be easily accessed, was endorsed by the majority of responses.

Question 73: How can Deprivation of liberty authorised by a power of attorney be appropriately reviewed?

72 (44.4%) responses to this question

The most popular answer to this question was to have the same level of review as guardianship orders. The resource implications for this, particularly on local authorities, was a concern for the vast majority of respondents. A number of respondents felt that review by local authorities was simply not practical unless there was significant investment from the Scottish Government.

Other proposals included the OPG or the MWC carrying out reviews being part of the current care planning process. The need for ready access to independent advocacy was highlighted again. However, a small number of respondents felt that where a decision regarding deprivation of liberty has been made by an attorney who has been assessed and approved to assume this role then their decision should generally be respected. Another respondent recommended specific time frames for review should be included in the power of attorney itself.

Deprivation of liberty and guardianships

Question 74: Do you agree with the proposal to set out the position on Deprivation of liberty and guardianships in the Adults with Incapacity Act?

Total Responses	Yes	No	Comments only
74 (43.2%)	63	7	4

The general consensus from the respondents in favour of this approach was that it represented an improvement on the current situation and that it would ensure a greater degree of scrutiny around those subject to guardianship who are also deprived of their liberty. However, again concern was expressed about the significant investment in frontline social work and MHO capacity that would be required to meet the demands of these safeguards. And the majority of respondents also highlighted the need to provide independent advocacy for adults in this situation, particularly if the order for deprivation of liberty was time limited and required more frequent reviews. One respondent also noted that a deprivation of liberty may not be restricted to locked doors and could involve the use of technology.

Question 75: What are your views on the proposed timescales?

67 (41.4%) responses to this question

Many respondents were of the view that the proposed timescales were too short and significant resource would be needed to meet these. Others felt that the shorter timescales were appropriate given the level of restriction the adult would be subject to. A popular suggestion was that the time frame should be brought into line with the timescales local authorities already use in reviewing placements. The suggestion of an initial 6 month review followed by a 12 month review which could be extended as required was in line with the least restrictive principle.

One commented that if the proposed process was followed then every individual in a care home would require to be reviewed every 6 months, with a 12 month court review, and then a further court review in 2 years’ time. This would be extremely intrusive for the adult living their life. Many of these cases will involve individuals residing in care home placements for the long-term with no prospect of leaving accommodation. This would be an intrusive and distressing process to subject them to where there is not dispute by any party at any time that the placement and deprivation of liberty is appropriate.

A number of respondents, however, were also concerned that there was a conflict of interest if local authorities reviewed local authority guardianship.

Question 76: What are your views on the proposed right of appeal ?

65 (40.1%) responses to this question

The answers to this question frequently referred back to answers given to similar questions earlier in the consultation. The significant majority of respondents felt that a right of appeal was fundamental to the upkeep of the individual’s rights. And that access to independent advocacy was required to support the adult in appealing. Social workers were also mentioned as those who could support the adult, but noting again that this would require significant increase in resource. A number commented that a right of appeal will only be genuine if the adult or person demonstrating an interest in the welfare of the adult is able to access advice, representation and funding.

One response commented that as there is already a right to apply to vary a guardianship order a right of appeal is not necessary. And another response felt that an AWI First tier tribunal system was a better option.

Question 77: What else could be done to improve the accessibility of appeals?

61 (37.6%) responses to this question

The low response rate to this question reflects the fact that a very similar question was asked earlier in the consultation. The vast majority of those who responded, referred back to earlier answers.

Question 78: Do you agree with the proposal to have 6 monthly reviews of the placement carried out by local authorities?

Total Responses	Yes	No	Comments only
66 (40.7%)	47	19	-

Of those who agreed with this, there were significant concerns that the resource is simply not there to meet these timescales. One commented it was just setting local authorities up to fail. Many commented that the review needed to be dynamic and informed and not just a passive gathering of information.

Others felt that as this would essentially double the workload of local authorities it would need to be justified by evidence. And there were suggestions that the necessity of 6 monthly reviews should be determined on a case by case basis, depending on the specific needs of the adult, as for many, who are settled, 6 monthly reviews would be excessive.

Question 79: Is there anything else we should consider by way of review?

57 (35.2%) responses to this question

The need for families to be involved in the review process was highlighted by many, clarity around the process if the review throws up concerns, the need for an independent voice and clear guidance so that we don’t end up with significantly different approaches by different local authorities.

Question 80: Do you agree with our proposal for a standalone right of appeal against deprivation of liberty?

Total Responses	Yes	No	Comments only
59 (36.4%)	56	3	-

The overwhelming majority of respondents that agreed, expressed the view that any system that equates to a deprivation of liberty requires a standalone process of appeal. Ready access to independent advocacy was identified as a requirement for this appeal process and the need for support for the adult to ensure the appeal was truly accessible was highlighted.

The small number who disagreed felt it would undermine guardianship, and that such an appeal is of no practical value unless supported by resources.

Question 81: Do you agree with our proposal to give the Mental Welfare Commission a right to investigate Deprivation of Liberty placements when concern is raised with them?

Total Responses	Yes	No	Comments only
63 (38.9%)	63	0	-

As can be seen all respondents who answered this question were in favour, but the need to adequately resource the MWC to fulfil this role was highlighted by many.

Appointment of safeguarders/curators ad litem

Question 82: Do you agree with the proposals to regulate the appointment, training and remuneration of safeguarders in adults with incapacity cases?

Total Responses	Yes	No	Comments only
80 (50.6%)	73	2	5

Many respondents emphasised the need for a consistent and standardised approach to ensure safeguarders’ quality, consistency and fairness, particularly in training, appointment and remuneration. There was strong support for mandatory comprehensive training and concerns that this training should not be limited to online modules.

Several responses highlighted the importance of quality assurance measures, such as having clear role definitions, standardised reporting requirements and regular monitoring. A recurring theme was the concern about safeguarder’s fees, with respondents suggesting that remuneration should be regulated and fair. Many advocated for a central funding model instead of the current local authority-based funding, which places a financial strain on these authorities. Fixed rates, similar to those for curators in children’s cases were frequently recommended.

There were calls for safeguarders to be selected based on their expertise in AWI cases, with some suggesting that safeguarders’ appointments should be managed centrally rather than locally, ensuring equitable access and avoiding discrepancies across sheriffdoms. Some responses raised concerns about the overlap between safeguarders and MHOs, suggesting that clear distinctions should be made to avoid redundancy and inefficiency.

Question 83: Do you agree with the proposals for training and reporting duties for curators?

Total Responses	Yes	No	Comments only
78 (48.2%)	72	1	5

There is strong support for introducing regulated training and reporting duties for curators in AWI cases. Similar to question 82 respondents emphasised the need for consistency and standardisation amongst curators and the need for thorough, practical training that addresses key issues like human rights, the role of independent advocacy and understating the will and preference of adults with incapacity. There were similar calls for clearer role definition and governance. Also with regards to remuneration, some responses pointed out the disparity between the proposals for curators and safeguarders, noting the lack of a remuneration regulation for curators.

Respondents highlighted inconsistencies in current practices, noting that the effectiveness of curators varies across regions. Some raised concerns that curators are not always utilised effectively within AWI proceedings and that clear guidelines and standards are necessary to address this. Several responses emphasised that there should be clear accountability for ensuring that curators meet training requirements and adhere to reporting duties, possibly through regular reviews or oversight mechanisms.

Question 84: What suggestions do you have for additional support for adults with incapacity cases to improve accessibility?

60 (37%) responses to this question

The responses regarding additional support for adults with incapacity cases to improve accessibility focus on several key themes, including enhancing communication and information accessibility, increasing advocacy and support services, reforming the court environment and ensuring consistency in the roles of safeguarders and curators.

Regarding the venues and remote options, respondents called for the consideration of more accessible venues for hearings and the need for provision of video conferencing where appropriate.

Many responses also mentioned the need for further education around the responsibilities associated with power of attorneys to ensure informed decision-making and reduce potential misuse. It was evident that respondents also desired clear definitions regarding the roles of safeguarders and curators and called for a consideration of the potential for curators to initiate proceedings where needed to protect adults’ interests.

Question 85: Do you think there should be a specific criminal offence relating to financial abuse of an adult lacking in capacity?

Total Responses	Yes	No	Comments only
82 (50.6%)	82	0	-

Again all those who responded to this question agreed with the proposal, with many commenting it is a long overdue change.

Question 86: If so, should the liability be the same as for the welfare offence?

Total Responses	Yes	No	Comments only
70 (43.2%)	63	7	-

Those who agreed with this proposal felt that looking after someone’s finances is often intricately linked to welfare matters so the penalty for an offence should be the same. Many commented that financial abuse is as impactful as welfare related abuse and should be treated equally. Those who disagreed generally felt a higher penalty was necessary and consideration should be given to existing penalties for financial misconduct and crimes as a comparison.

Question 87: Do you have experience of adults lacking in capacity being supported in hospital, despite being deemed to be no longer in need of hospital care and treatment? What issues have arisen with this?

Total Responses	Yes	No	Comments only
75 (46.3%)	69	6	-

Responses to this question mentioned many issues: lack of care home placements; lack of support packages; institutionalisation of patients; increase of hospital based infection; inability to admit people to hospital because of lack of beds; strained relationships at an organisational level; delays in court processes; lack of legal support; delays in legal aid funding; self-funding care homes which do not accept local authority placements; delay in advocacy services; lack of social work and MHO capacity to arrange case conferences; family not agreeing to moves; concerns regarding funding leading to families reluctance to progress a move; lack of understanding of an individual’s rights; decline of patient’s physical and mental wellbeing whilst waiting on a move; lack of urgency once someone is admitted to hospital and seen as ‘safe’ in a bed; discharge planning starting too late; lack of family involvement in decision-making; and misconception that AWI planning is solely the responsibility of the local authority.

Question 88: Do you foresee any difficulties or challenges with using care setting for those who have been determined to no longer need acute hospital care and treatment?

Total Responses	Yes	No	Comments only
75 (46.3%)	61	14	-

The main issues mentioned were lack of care settings and the need for the care setting to be appropriate for the adult in question. The need for a legal framework for the move if a person were to be deprived of their liberty in the new setting, the lack of choice for the person, the financial cost to the family, the need for clarity over fees generally, the potential harm of multiple moves and the need to balance the risk of this and the potential harm of remaining in a hospital bed. It was commented by a number of respondents that a framework of supported decision-making was necessary to help adults make decisions about future care. Concern was expressed that would be prioritised over appropriate planning and placement for individuals. And mention was made of delays in the guardianship system not being helped by such moves.

One response simply asked where are the care home beds coming from? They noted that there's already a shortage. NHS beds, private care homes and local authority care homes have shut down, taking huge amount of beds out of circulation. Individual's needs are more complex and not all care homes can support needs of all individuals this would affect.

Of those who answered no, the sense was a care home was a more appropriate setting and hospital and social care facilities should be considered part of the same system. But the need for sufficient resources – be it practitioners, placements and support packages was also highlighted in these responses.

Question 89: What safeguards should we consider to ensure that the interests and rights of the patients are protected?

73 (45.1%) responses to this question

There was a wide range of answers to this question. Training for all staff, particularly within acute care was mentioned by many; extending advocacy; liaison with MHOs’ or AWI trained social workers in every hospital; seeking the view of the patient; ensuring their will and preference are known; communication to match the needs of the individual; interim guardianship; swift access to legal support; ensure the moves are ECHR compliant; appropriate powers to enable the moves; protocols to ensure transparency; informed consent; a robust appeal process; and possible involvement of a safeguarder to uphold the adult’s rights.

Question 90: What issues should we consider when contemplating moving patients from an NHS acute setting to a community based care setting such as a care home?

73 (45.1%) responses to this question

Answers to this focussed on both the need for a robust legal process and more location based concerns. Improvements in the legal process are needed so this can be achieved more quickly; there needs to be clarity around the use of interim orders; consideration of the person’s capacity; objections to the move; need for a guardianship order or not; the legality of the move including the need for a robust right of appeal; the locality of the care setting; ensuring the move reflects the adult’s wishes or feelings; the need to take account of AWI principles; who is going to pay for the placement; and need to avoid a move to a temporary setting that is in greater breach of the person’s rights to dignity, liberty and autonomy to that of being in a hospital in a bid to reduce delayed discharges.

Comment was also made that there needs to be a greater focus on the impact on the quality of life for the person and the need to move away from a care home setting as a first resort. Transparency in communication is vital. If individuals are compelled to move to places they do not wish to go this can lead to failure in their care, resulting in a quick return to acute settings.

Respondents who had lived experience felt that not enough time or effort is spent to support the adult to make decisions and this needs to be addressed. Training is needed for staff at all levels to support those who have been deemed not to have capacity.

Part 8: Authority for Research

Question 91: Should the AWI Act be amended to allow the creation of more than one ethics committee capable of reviewing research proposals involving adults lacking capacity in Scotland?

Total Responses	Yes	No	Comments only
73 (45.1%)	65	6	2

A majority of the respondents agreed with the proposal to permit the creation of more than one ethics committee capable of reviewing research involving adults with incapacity in Scotland.

Of the respondents that disagreed with the proposal, the most common opinion held was that the existing ethics committee established to review AWI research is sufficient.

Two major themes emerged amongst the respondents who agreed with the proposal. The first theme was that this proposal would help improve the capacity and resilience in the system, reducing the burden on the lone committee that currently reviews AWI research in Scotland. Secondly, many respondents noted that the creation of more than one committee would allow an appeals system to be established in Scotland for AWI research.

Some respondents agreed with the proposal, with the caveat that any additional committee(s) operated to the same high standards as the existing committee; with other respondents generally noting that this would strengthen the protections of the rights and wellbeing of adults with incapacity.

Question 92: In research studies for which consent is not required for adults with capacity to be included as participants, should adults with incapacity also be permitted to be included as participants without an appropriate person providing consent for them?

Total Responses	Yes	No	Comments only
70 (43.2%)	54	11	5

A majority of the respondents agreed that for research studies in which consent is not required for adults with capacity to be included as participants, adults with incapacity should also be permitted to be included as participants without an appropriate person providing consent for them.

Of the respondents that disagreed with the proposal, most felt that, for these types of research studies, consent should still be sought from the adult’s appropriate decision-maker. Additionally, another view provided by respondents who disagreed with this proposal was that, even if consent is not required from participants with capacity for research such as data studies, these participants can still become informed and understand that this research is occurring, which is not the case for adults with incapacity.

The most common view from the respondents who agreed with this proposal was that it represented a fairer and more equal approach for adults with incapacity. A large number of those who agreed did so on the provision that robust safeguards and approval processes are established to protect adults with incapacity. A few respondents added that there is a need to ensure that adults with incapacity are not disproportionately recruited to these studies.

Another couple of major themes amongst respondents agreeing with the proposal were that the current system is exclusionary towards adults with incapacity and highlighting the importance for vulnerable groups to be represented in research participant populations. Additionally, some respondents mentioned that the current system risks the outcomes from research studies not being applicable to or benefitting adults with incapacity as a result of them being excluded from participating in the first place. Finally, a few respondents noted that the existing approvals processes for the types of research mentioned in this proposal that involve adults with capacity are robust enough to support the inclusion of adults with incapacity in these studies.

Question 93: Should Scotland A REC (or any other ethics committee constituted under Regulations made by the Scottish Ministers in the future) have the ability to determine that consent would not be required for adults with incapacity to be included as research participants, when reviewing studies for which consent would also not be required to include adults with capacity as research participants?

Total Responses	Yes	No	Comments only
63 (38.9%)	45	14	4

Most of the respondents agreed that Scotland A REC (or any other ethics committee constituted under Regulations made by the Scottish Ministers in the future) should have the ability to determine that consent would not be required for adults with incapacity to be included as research participants, when reviewing studies for which consent would also not be required to include adults with capacity as research participant.

A number of respondents disagreed in relation to these types of research studies. A few expressed the view that consent should still be sought from the adult’s appropriate decision-maker. However, another common theme identified amongst those who disagreed, was that even if respondents disagreed with this specific proposal, there was an acknowledgement that there would be circumstances whereby consent may not be required for adults with incapacity to participate in research.

Two common views from those who agreed with this proposal was that it represented a fairer and more equal approach for adults with incapacity; and that the current system was unethical or exclusionary towards adults with incapacity with respect to research participation. Another common theme from those who agreed was that they agreed on the provision that robust safeguards and approval processes are in place to protect adults with incapacity. Many respondents that agreed with the proposal also noted that the Scotland A Research Ethics Committee would be an appropriate body to make decisions about the participation of adults with incapacity in certain research studies without consent.

As in the responses to question 92, some respondents that agreed with the proposal highlighted the importance of ensuring that adults with incapacity are not disproportionately recruited to these studies. A few respondents who agreed with the proposal also requested that more clarity should be provided about the type of research studies this would apply to.

Question 94: Should the Adults with Incapacity Act be amended to allow researchers to consult with a registered medical practitioner not associated with the study and, where both agree, to authorise the participation of adults with incapacity in research studies in emergency situations where an urgent decision is required and researchers cannot reasonably obtain consent from a guardian, welfare attorney or nearest relative in time?

Total Responses	Yes	No	Comments only
65 (40.1%)	39	21	5

A majority of the respondents agreed with the proposal to allow researchers to consult with a registered medical practitioner not associated with the study and, where both agree, to authorise the participation of adults with incapacity in research studies in emergency situations where an urgent decision is required and researchers cannot reasonably obtain consent from a guardian, welfare attorney or nearest relative in time.

Of the respondents that disagreed with the proposal, three common opinions were put forward. Firstly, many respondents felt that they needed some more clarity and detail about the proposal. For example, some respondents queried what would be defined as an ‘emergency situation’ during which this proposed provision could apply. There were also queries related to asking how long researchers would be expected to try and contact the adult’s usual decision-maker before being able to make use of this proposed provision. The second major theme amongst those who disagreed with the proposal related to concerns that, if implemented, this proposal could be misused in certain circumstances to take advantage of adults with incapacity. Finally, the third major theme identified was that some respondents who disagreed with this proposal still believed consent should continue to be sought from the adult’s usual representative instead (guardian, welfare attorney, or nearest relative) rather than researchers consulting with a medical practitioner as outlined in this proposal.

Multiple themes emerged from the respondents who agreed with the proposal. The two most common themes raised here were related to the importance of research that has participant populations representative of the population. For example, many respondents noted that this proposal would allow adults with incapacity to access and participate in a wider range of research. The second major theme identified here was that it is crucial for research outcomes to be applicable to and benefit adults with incapacity, which this proposal could help facilitate.

Another comment left by those in agreement was that this proposed change would lead to a greater alignment between Scotland and the rest of the UK when it comes to the legislation governing how adults with incapacity can participate in research.

One major topic raised by respondents agreeing with the proposal was to highlight their thoughts about the current AWI Act being unfair to or disadvantaging adults with incapacity in this respect.

Many respondents agreeing with the proposal also noted the importance of safeguards being in place to protect adults with incapacity if this proposal was to be implemented. Some respondents mentioned specific safeguards they felt would be important to implement. For example, some respondents highlighted the importance of researchers still prioritising efforts to firstly contact the adult’s usual decision-maker before consulting with a medical practitioner was emphasised. Another common theme relating to safeguards was establishing the suitability of the medical practitioner to be consulted with. For example, ensuring the medical practitioner is independent from the conduct of the study but has been appropriately informed about the nature of the study and the risks associated with it before making any decision.

Question 95: Should the Adults with Incapacity Act be amended to allow researchers to enrol adults with incapacity in research studies without the consent of an appropriate representative of the adult, in emergency situations where a decision to participate in research must be made as a matter of urgency, where researchers cannot reasonably obtain consent from an appropriate representative of the adult, and where researchers act in accordance with procedures that have been approved by Scotland A REC (or any other ethics committee constituted by regulations made by the Scottish Ministers)?

Total Responses	Yes	No	Comments only
66 (40.7%)	38	22	6

A majority of the respondents agreed with the proposal to allow researchers to enrol adults with incapacity in research studies without the consent of an appropriate representative of the adult, in emergency situations where a decision to participate in research must be made as a matter of urgency, where researchers cannot reasonably obtain consent from an appropriate representative of the adult, and where researchers act in accordance with procedures that have been approved by Scotland A REC (or any other ethics committee constituted by regulations made by the Scottish Ministers).

Given the similarity of questions 94 and 95, many of the themes emerging in the responses to question 94 were also identified here.

Of the respondents that disagreed with the proposal, three common opinions were put forward. Firstly, many respondents felt that they needed some more clarity and detail about the proposal. Similar to comments provided for question 94, some respondents queried what would be defined as an ‘emergency situation’ during which this proposed provision could apply. The second major theme identified was that some respondents believed consent should continue to be sought from the adult’s usual representative (guardian, welfare attorney, or nearest relative) rather than researchers making use of the provision outlined in this proposal. The third main comment raised, by those who disagreed with the proposal, was related to the importance for any decision-maker to have a detailed understanding of the adult’s wishes and preferences, which may not occur in the circumstances outlined in this proposal.

Multiple themes emerged from the respondents who agreed with the proposal. Again, two very common themes raised here were related to the importance for research to have participant populations representative of the population. Many respondents stressed that this proposal would allow adults with incapacity to access and participate in a wider range of research. The second major theme identified here emphasised the importance for research outcomes to be applicable to and benefit adults with incapacity, which this proposal could help facilitate.

Another point raised by respondents agreeing with the proposal was to highlight that, if implemented, this proposal would lead to a greater alignment between Scotland and the rest of the UK in terms of the legislation governing how adults with incapacity can participate in research.

Some respondents who agreed with the proposal also highlighted their view about the current AWI Act being unfair to or disadvantaging adults with incapacity in this respect.

Many respondents agreeing with the proposal referenced the importance of researchers still prioritising efforts to firstly contact the adult’s usual decision-maker before this provision was made use of; or ensuring researchers take steps to reach out and contact the adult’s usual decision-maker at the nearest practical time after the provision has been made use of. Many of respondents felt that the current safeguards present in the ethical review system are robust and effective enough to support the implementation of this proposal.

Question 96: Should the Adults with Incapacity Act be amended to permit researchers to nominate a professional consultee to provide consent for adults with incapacity to participate in research, in instances where researchers cannot reasonably obtain consent from a guardian, welfare attorney or nearest relative?

Total Responses	Yes	No	Comments only
67 (41.4%)	35	27	5

The majority of the respondents agreed with the proposal to permit researchers to nominate a professional consultee to provide consent for adults with incapacity to participate in research, in instances where researchers cannot reasonably obtain consent from a guardian, welfare attorney or nearest relative.

Of the respondents that disagreed with the proposal, four common themes were identified. The most common comment raised was related to the importance for any decision-maker to have a detailed and strong understanding of the adult’s wishes and preferences, which may not occur in the circumstances outlined in this proposal. On a related note, many respondents felt that consent should continue to be sought from the adult’s usual representative (guardian, welfare attorney, or nearest relative). The third theme identified was that some respondents highlighted concerns that, with researchers nominating their own consultees, there could be the risk of introducing bias or the consultee having a conflict of interest. Finally, some respondents wanted more clarity and detail about the situations in which the proposal would apply if implemented.

There were many common themes ascertained from the respondents who agreed with the proposal. Again, many of these were themes recurrent in responses to the other consultation questions. For instance, the most common theme identified was respondents mentioning the importance of making research more accessible to and inclusive of adults with incapacity. Again, the importance for research outcomes to be applicable to and benefit adults with incapacity was also emphasised. Another point raised by respondents agreeing with the proposal was to highlight that, if implemented, this proposal would lead to a greater alignment between Scotland and the rest of the UK in terms of the legislation governing how adults with incapacity can participate in research, which was also a point raised in response to questions 94 and 95.

An additional comment provided by respondents agreeing with the proposal was to highlight that it is not always possible to seek consent from an adult’s guardian, welfare attorney or nearest relative.

Many of those who agreed with the proposal made reference to the importance of safeguards to protect adults with incapacity if this proposal was to be implemented. For example, many respondents discussed ensuring that the nominated consultee was independent from the research study in question, and also possessed the relevant knowledge and expertise to help determine whether it would be appropriate to give consent for an adult with incapacity to take part in that study. A couple of respondents also raised that guidance/training should be developed to assist nominated consultees acting in this capacity. Finally, many respondents agreed with the proposal, but wished to note that it is essential that the adult’s will and preferences remain the central focus during this consent process.

Question 97: In addition to being permitted to participate in research that investigates the cause, diagnosis, treatment or care of their incapacity, should the Adults with Incapacity Act be amended to allow adults lacking capacity to participate in research that investigates conditions that may arise as a consequence of their incapacity?

Total Responses	Yes	No	Comments only
66 (40.7%)	58	5	3

A majority of the respondents agreed with the proposal to, in addition to being permitted to participate in research that investigates the cause, diagnosis, treatment or care of their incapacity, to allow adults lacking capacity to participate in research that investigates conditions that may arise as a consequence of their incapacity.

Many of the themes outlined below were common across questions 97, 98 and 99.

Of the respondents that disagreed with the proposal, only two provided comments. One respondent indicating that the current provisions set out in the AWI Act are sufficient and the other respondent stating it would be unclear which conditions this proposal would apply to.

The most common theme emerging from the respondents who agreed with the proposal was the importance of the outcomes and treatments that result from research applying to and benefiting adults with incapacity. A number of respondents also touched on the current AWI Act being exclusionary or discriminatory towards adults with incapacity, or indicated that this proposal would represent a move towards a more inclusive approach to research participation for adults with incapacity.

Many of those who agreed also indicated that they would only agree to the proposal if the appropriate safeguards were in place. For example, ensuring that the existing robust consent procedures for adults with incapacity are followed for any additional type of research study involving adults with incapacity that would be facilitated by this proposal. Additionally, many respondents also stressed that the adult’s wishes, will and preference should remain the central focus when determining the appropriateness of including an incapacitated adult as a research participant in a given study. Finally, a few respondents who agreed with the proposal also noted that, as a result of the current AWI Act, there are many areas of research that have a poor evidence base or are underexplored.

Question 98: In addition to being permitted to participate in research that investigates the cause, diagnosis, treatment or care of their incapacity, should the Adults with Incapacity Act be amended to allow adults lacking capacity to partake in research that investigates conditions they experience that do not relate to their incapacity?

Total Responses	Yes	No	Comments only
65 (40.1%)	55	6	4

A majority of the respondents agreed with the proposal to, in addition to being permitted to participate in research that investigates the cause, diagnosis, treatment or care of their incapacity, allow adults lacking capacity to partake in research that investigates conditions they experience that do not relate to their incapacity.

As mentioned above, many of the themes identified in responses to this question were also commonplace across questions 97 and 99.

For those who disagreed with the proposal, no common theme emerged, with some reasons behind these responses being that the part of the population that does possess capacity should be sufficient to recruit as participants for these types of studies; or that the current provisions in the AWI Act adequately governs this area.

Again, the most common theme emerging from the respondents who agreed with the proposal was the importance of the outcomes, conclusions and treatments that result from research applying to and benefiting adults with incapacity. A number of respondents also relayed their thoughts that the AWI Act as it is currently written is exclusionary or discriminatory towards adults with incapacity and how they are able to participate in research; or indicated that this proposal would represent a move towards a more inclusive approach to research participation for adults with incapacity.

One major theme identified in responses agreeing with this question was the importance of acknowledging that the health needs and experiences of adults with incapacity extend beyond their incapacity. For example, some respondents highlighted that incapacitated adults can often experience multiple conditions, some of which can be unrelated to their incapacity.

As in the responses to many previous questions, many of the respondents who agreed with the proposal, also indicated that they would only agree to the proposal if the appropriate safeguards were in place. For example, ensuring that the effective consent procedures currently in place for adults with incapacity are followed for any additional type of research study involving adults with incapacity that would be facilitated by this proposal. Additionally, many respondents also stressed that the adult’s wishes, will and preferences should be the main priority when deciding whether to include the adult as a participant in a particular research study. Finally, a few respondents who agreed with the proposal only did so on the condition that adults with incapacity are not disproportionately targeted for recruitment into these studies.

Question 99: Should the Adults with Incapacity Act be amended to allow adults with incapacity the opportunity to participate in any research regardless of whether the research explores conditions that relate to their incapacity or investigates conditions that they experience themselves?

Total Responses	Yes	No	Comments only
64 (39.5%)	49	12	3

A majority of the respondents agreed with the proposal to allow adults with incapacity the opportunity to participate in any research regardless of whether the research explores conditions that relate to their incapacity or investigates conditions that they experience themselves.

As mentioned above, many of the themes identified in responses to this question were also commonplace across questions 98 and 99.

Three major themes emerged from respondents who disagreed with the proposal. Firstly, some respondents who disagreed but acknowledged that this could be dependent on the adult’s past and present wishes or feelings on participating in research. There were also concerns amongst respondents that this proposed change could be misused or misinterpreted to take advantage of adults with incapacity. Finally, the most common comment raised was that it would not be appropriate for an incapacitated adult to take part in a research study that investigates a condition that the adult does not possess.

The most common theme identified from respondents who agreed with the proposal was that they would only agree to this proposed change if the appropriate safeguards and oversight were in place for adults with incapacity. For example, making sure that, for any new research study that would be made possible by this proposal, researchers still adhere to the effective and robust consent procedures currently in place for adults with incapacity to be able to be included as research participants.

As highlighted as a theme in responses to previous questions, respondents who agreed with this proposal also outlined the importance of the outcomes, conclusions and treatments resulting from research studies applying to and benefiting adults with incapacity. For example, some respondents outlined that, by making research more inclusive and participant populations more representative, research outcomes will become more valid and translatable across a wider range of the population. As with questions 97 and 98, a number of respondents also commented that the AWI Act as it is currently written is exclusionary or unfair towards adults with incapacity and how they are able to participate in research; or noted that this proposal would represent a move towards a more inclusive or equitable approach to research participation for adults with incapacity.

Another major theme identified amongst those who agreed was that the adult’s wishes, will and preference should be prioritised when determining whether their inclusion in a research study would be appropriate. Additionally, many respondents agreeing with this question noted an acknowledgement that the experiences of adults with incapacity are not restricted to their incapacity. Finally, as with question 98, a few respondents who agreed with the proposal only did so on the provision that adults with incapacity are not disproportionately targeted for recruitment into these studies.